Senate Bill S9046A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9046--A
 
                             I N  S E N A T E
 
                             October 13, 2020
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be  committed  to  the  Committee  on  Rules  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the general business law, in relation to third-party
   food delivery service charges during COVID-19; and providing  for  the
   repeal of certain provisions upon the expiration thereof
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  on March 7, 2020, the governor of New York declared a state
 of emergency related to the COVID-19 pandemic; and  has  issued  various
 emergency   directives  related  to  the  COVID-19  pandemic  that  have
 restricted the ability of restaurants and other food providers to  fully
 operate their businesses.
   These  social  distancing  measures required to mitigate the spread of
 COVID-19 means that delivery and take-out options from  restaurants  and
 other  food establishments are critical to the public's accessibility of
 food and addressing any community food insecurity.
   Restaurants and other food  establishments  are  restricted  in  their
 ability  to  fully  utilize their dine-in capabilities and the resultant
 reliance on take-out and delivery service places  a  sudden  and  severe
 financial  strain  on  many  establishments, particularly those that are
 small, independently owned or  minority-owned  businesses  that  already
 operate  on  thin margins. Adding to financial pressures in the industry
 that predate the current public health  crisis,  it  is  in  the  public
 interest to take action to maximize restaurant revenue from delivery and
 pick-up  orders to enable these businesses to survive the impacts of the
 COVID-19 pandemic  and  continue  supporting  a  diverse  workforce  and
 contributing to the vitality of our community.
   Therefore,  it  is the intent of the legislature to create a statewide
 policy and fee structure for third-party food delivery  services  during
 the  state declared COVID-19 emergency while food service establishments
 have capacity restrictions.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD17385-03-0

 S. 9046--A                          2
 
   § 2. The general business law is amended by adding a new section 391-v
 to read as follows:
   § 391-V. THIRD-PARTY FOOD DELIVERY SERVICE CHARGES DURING COVID-19. 1.
 DEFINITIONS.    FOR  PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:
   (A) "DECLARED EMERGENCY" MEANS THE PERIOD DURING WHICH A STATE  DISAS-
 TER  EMERGENCY HAS BEEN DECLARED BY THE GOVERNOR THAT RESULTS IN LIMITA-
 TIONS ON ON-PREMISES DINING FOR RESTAURANTS AS A RESULT OF THE  COVID-19
 PANDEMIC.
   (B)  "DELIVERY FEE" MEANS A FEE CHARGED BY A THIRD-PARTY FOOD DELIVERY
 SERVICE FOR PROVIDING A FOOD SERVICE ESTABLISHMENT WITH A  SERVICE  THAT
 DELIVERS  FOOD  FROM SUCH ESTABLISHMENT TO CUSTOMERS. DELIVERY FEE SHALL
 NOT INCLUDE ANY OTHER FEE THAT MAY BE  CHARGED  BY  A  THIRD-PARTY  FOOD
 DELIVERY  SERVICE  TO  A  FOOD  SERVICE ESTABLISHMENT, INCLUDING BUT NOT
 LIMITED TO, FEES FOR LISTING OR ADVERTISING THE FOOD SERVICE  ESTABLISH-
 MENT  ON  THE THIRD-PARTY FOOD DELIVERY SERVICE PLATFORM OR FEES RELATED
 TO PROCESSING THE ONLINE ORDER.
   (C) "FOOD SERVICE ESTABLISHMENT" MEANS A PLACE WHERE FOOD IS  PREPARED
 AND  INTENDED  FOR  INDIVIDUAL  PORTION SERVICE AND INCLUDES THE SITE AT
 WHICH SUCH INDIVIDUAL PORTIONS ARE PROVIDED, WHETHER CONSUMPTION  OCCURS
 ON  OR  OFF  THE  PREMISES. FOOD SERVICE ESTABLISHMENT SHALL NOT INCLUDE
 FOOD PROCESSING ESTABLISHMENTS, RETAIL FOOD STORES, PRIVATE HOMES  WHERE
 FOOD  IS  PREPARED  OR  SERVED  FOR FAMILY CONSUMPTION, AND FOOD SERVICE
 OPERATIONS WHERE A DISTINCT GROUP MUTUALLY  PROVIDES,  PREPARES,  SERVES
 AND  CONSUMES  THE  FOOD,  INCLUDING  BUT NOT LIMITED TO, A COVERED-DISH
 SUPPER LIMITED TO A CONGREGATION, CLUB OR FRATERNAL ORGANIZATION.
   (D) "ONLINE ORDER" MEANS ANY ORDER PLACED BY A  CUSTOMER  THROUGH,  OR
 WITH THE ASSISTANCE OF, A PLATFORM PROVIDED BY A THIRD-PARTY FOOD DELIV-
 ERY SERVICE, INCLUDING BUT NOT LIMITED TO, A TELEPHONE ORDER.
   (E)  "PURCHASE  PRICE" MEANS THE TOTAL PRICE OF THE ITEMS CONTAINED IN
 AN ONLINE ORDER THAT ARE LISTED ON THE MENU OF THE FOOD  SERVICE  ESTAB-
 LISHMENT  WHERE  SUCH ORDER IS PLACED.  PURCHASE PRICE SHALL NOT INCLUDE
 TAXES, GRATUITIES AND ANY OTHER FEES THAT MAY MAKE UP THE TOTAL COST  TO
 THE CUSTOMER OF AN ONLINE ORDER.
   (F)  "THIRD-PARTY  FOOD  DELIVERY  SERVICE"  MEANS ANY WEBSITE, MOBILE
 APPLICATION OR OTHER INTERNET SERVICE THAT OFFERS OR  ARRANGES  FOR  THE
 SALE  AND  SAME-DAY  DELIVERY  OR  SAME-DAY PICKUP OF FOOD AND BEVERAGES
 PREPARED BY NO FEWER THAN TWENTY FOOD SERVICE ESTABLISHMENTS LOCATED  IN
 THE STATE THAT ARE OWNED AND OPERATED BY DIFFERENT PERSONS.
   2.  FEE  LIMITS  DURING  DECLARED EMERGENCIES. (A) NO THIRD-PARTY FOOD
 DELIVERY SERVICE SHALL CHARGE A FOOD SERVICE ESTABLISHMENT ANY  COMBINA-
 TION  OF  FEES, COMMISSIONS OR COSTS, INCLUDING A DELIVERY FEE, FOR SUCH
 THIRD-PARTY FOOD DELIVERY SERVICE'S SERVICES THAT TOTAL MORE THAN TWENTY
 PERCENT OF THE PURCHASE PRICE OF AN ONLINE ORDER PLUS CREDIT CARD  PROC-
 ESSING FEES.
   (B)  NO  THIRD-PARTY FOOD DELIVERY SERVICE SHALL CHARGE A FOOD SERVICE
 ESTABLISHMENT A DELIVERY FEE THAT TOTALS MORE THAN  FIFTEEN  PERCENT  OF
 THE PURCHASE PRICE OF AN ONLINE ORDER.
   (C)  NO  THIRD-PARTY  FOOD  DELIVERY  SERVICE SHALL REDUCE THE COMPEN-
 SATION, INCLUDING BUT NOT LIMITED TO, ANY TIP OR GRATUITY, PAID  TO  ANY
 WORKER AS A RESULT OF FEES CHARGED DURING THE DECLARED EMERGENCY.
   3.  PENALTIES  AND ENFORCEMENT. WHENEVER THERE SHALL BE A VIOLATION OF
 THIS SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN  THE
 NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING
 JURISDICTION  TO  ISSUE AN INJUNCTION TO ENJOIN AND RESTRAIN THE CONTIN-
 UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE  SATISFACTION  OF

 S. 9046--A                          3
 
 THE  COURT  OR  JUSTICE  THAT  THE DEFENDANT HAS, IN FACT, VIOLATED THIS
 SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING
 AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF THAT  ANY
 PERSON  HAS,  IN  FACT,  BEEN  INJURED  OR  DAMAGED THEREBY. IN ANY SUCH
 PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE  ATTORNEY  GENERAL  AND
 DIRECT  RESTITUTION  OF  AN  AMOUNT  NOT  TO  EXCEED  THE AMOUNT OF FEES
 COLLECTED IN VIOLATION OF THIS SECTION BY A  THIRD-PARTY  FOOD  DELIVERY
 SERVICE,  ATTORNEYS' FEES, AND SUCH OTHER REMEDIES AS THE COURT MAY DEEM
 APPROPRIATE. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
 SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF  NOT  MORE
 THAN  ONE  THOUSAND  DOLLARS FOR EACH VIOLATION. EACH DAY A VIOLATION OF
 THIS SECTION IS CONTINUED AND EACH FOOD SERVICE ESTABLISHMENT CHARGED  A
 FEE  IN VIOLATION OF THIS SECTION SHALL CONSTITUTE A SEPARATE VIOLATION.
 IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION THE ATTORNEY GENERAL IS
 AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT  FACTS
 AND  TO  ISSUE  SUBPOENAS  IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND
 RULES.
   4. PREEMPTION.  AT ALL TIMES, WHETHER OR NOT A DECLARED  EMERGENCY  IS
 IN  EFFECT,  THE  PROVISIONS OF THIS SECTION SHALL SUPERSEDE AND PREEMPT
 ANY COUNTY OR MUNICIPAL OR OTHER LOCAL LAW,  ORDINANCE,  RESOLUTION,  OR
 REGULATION CONCERNING THE RELATIONSHIP BETWEEN A THIRD-PARTY FOOD DELIV-
 ERY SERVICE AND ANY FOOD SERVICE ESTABLISHMENT UTILIZING ITS SERVICES.
   §  3. This act shall take effect seven days after it shall have become
 a law provided that section one of this act and subdivisions 1, 2 and  3
 of  section 391-v of the general business law as added by section two of
 this act shall expire and be deemed repealed upon the expiration of  the
 declared  state  of  emergency relating to the novel coronavirus (COVID-
 19);  and  provided,  further,  that  the  superintendent  of  financial
 services  shall  notify  the  legislative  bill drafting commission upon
 occurrence of the expiration of the state disaster emergency declared by
 executive order number 202 and any further amendments or  modifications,
 and  as  may be further extended pursuant to section 28 of the executive
 law, in order that the commission may maintain an  accurate  and  timely
 effective data base of the official text of the laws of the state of New
 York  in furtherance of effectuating the provisions of section 44 of the
 legislative law and section 70-b of the public officers law.