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a. Any person who violates, or causes another person to violate, any provision of subdivision a of section 20-551 or subdivision a of section 20-556, or any rules promulgated pursuant to such subdivisions, shall be guilty of a misdemeanor punishable by a fine of not less than $250 nor more than $1,000, or by imprisonment for not more than 90 days or by both such fine and imprisonment.
b. Except as provided in subdivision a of this section, any person who violates, or causes another person to violate, a provision of this subchapter or any rule promulgated pursuant to such subchapter, shall be guilty of an offense punishable as follows:
1. for the first violation, a fine of not less than $25 nor more than $50;
2. for the second violation issued for the same offense within a period of two years of the date of the first violation, a fine of not less than $50 nor more than $100;
3. for the third violation within a period of two years of the date of the first violation, a fine of not less than $100 nor more than $250; and
4. for the fourth and any subsequent violations within a period of two years of the date of the first violation, a fine of not more than $500.
c. In addition to the fines set forth in subdivisions a and b of this section, any person who violates, or causes another person to violate, any provision of this subchapter or any rules promulgated pursuant to such subchapter shall be subject to a civil penalty as follows:
1. for the first violation, a civil penalty of not less than $25 nor more than $50;
2. for the second violation issued for the same offense within a period of two years of the date of the first violation, a civil penalty of not less than $50 nor more than $100;
3. for the third violation within a period of two years of the date of the first violation, a civil penalty of not less than $100 nor more than $250; and
4. for the fourth and any subsequent violations within a period of two years of the date of the first violation, a civil penalty of not more than $500.
d. For the purposes of this subchapter, there shall be a rebuttable presumption that any violation of any provision of this subchapter or any rules promulgated pursuant to such subchapter by a ticket seller was caused by:
1. the place of entertainment, mode of transportation, or guided tour whose ticket is vended; and/or
2. the person on whose behalf the ticket is vended.
Such presumption shall not apply: (i) where the ticket vended is counterfeit and was not issued by the place of entertainment, mode of transportation, or guided tour; or (ii) where the circumstances of the vending were not authorized or subject to the control of the place of entertainment, mode of transportation, or guided tour.
e. A proceeding to recover any civil penalty pursuant to this section shall be commenced by the service of a summons or notice of violation which shall be returnable to the office of administrative trials and hearings.
(L.L. 2016/080, 6/28/2016, eff. 8/1/2016; Am. L.L. 2016/093, 8/3/2016, eff. 8/1/2016)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2016/080.
Subchapter 35: Electronic Cigarette Retail Dealers
As used in this subchapter, the following terms have the following meanings:
Electronic cigarette. The term "electronic cigarette" means an electronic or battery-operated device that delivers an aerosol or emission for inhalation. Electronic cigarette also means any refill, cartridge, any other component of an electronic cigarette and any e-liquid. Electronic cigarette shall not include any product approved by the food and drug administration for sale as a drug or medical device.
Electronic cigarette retail dealer. The term "electronic cigarette retail dealer" means any person engaged in the retail sale of electronic cigarettes. For the purposes of this subchapter and title 17 of this code, the possession or transportation at any one time of more than 20 electronic cigarettes or more than 12 fluid ounces (354.882 mL) of e-liquid by any person other than a manufacturer or a person delivering electronic cigarettes or e-liquids in the regular course of business for a manufacturer or electronic cigarette retail dealer, shall be presumptive evidence that such person is an electronic cigarette retail dealer.
E-liquid. The term "e-liquid" means a solution, substance or material used in an electronic cigarette to produce an aerosol or emission to be inhaled by the user, whether or not the solution, substance or material contains nicotine.
Person. Notwithstanding sections 1-112 and 20-102 of the code, the term "person" means any individual, partnership, society, association, joint-stock company, corporation, limited liability company, estate, receiver, trustee, assignee, referee or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of individuals.
Pharmacy. The term "pharmacy" means "pharmacy" as defined in subdivision 1 of section 6802 of the education law, and any retail store that contains a pharmacy.
Retail store. The term "retail store" means any place that, in the regular course of business, sells or rents goods directly to the public.
(L.L. 2017/144, 8/28/2017, eff. 1/25/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2017/144.
a. License required of electronic cigarette retail dealers.
1. It shall be unlawful for any person to engage in business as an electronic cigarette retail dealer without first having obtained a license as hereinafter prescribed for each place of business wherein such person engages in the retail sale of electronic cigarettes in the city.
2. It shall be unlawful for a person to permit any premises under such person's control to be used by any other person in violation of paragraph 1 of subdivision a of this section.
3. It shall be unlawful for a pharmacy to obtain a license to engage in business as an electronic cigarette retail dealer.
b. License application.
1. In order to obtain a license to engage in business as an electronic cigarette retail dealer, a person shall file an application with the commissioner for a license for each place of business that such person desires to have for the retail sale of electronic cigarettes in the city. The application for each license or renewal thereof shall be made upon such form as prescribed by the commissioner and shall contain such information as the commissioner shall require.
2. The commissioner shall commence accepting applications for licenses to engage in business as an electronic cigarette retail dealer on the effective date of the local law that added this section, and shall continue accepting applications for 90 days following such commencement.
(a) During the 90 day application period, the commissioner shall only accept applications for licenses to engage in business as an electronic cigarette retail dealer from persons who have been engaged in the retail sale of electronic cigarettes as of the date of enactment of this subchapter.
(b) The commissioner may require proof of such engagement from applicants during the 90 day application period.
3. The commissioner shall not accept applications after the expiration of the 90 day application period unless the commissioner determines that acceptance of such applications would not result in the issuance of a license in excess of the community district electronic cigarette retail dealer cap established pursuant to paragraph 1 of subdivision e of this section.
c. Fee and license term.
1. There shall be a biennial fee of $200 for a license to engage in the business of an electronic cigarette retail dealer at each place of business where electronic cigarettes are sold in the city.
2. All even-numbered licenses shall expire on November 30 of the even-numbered year, and all odd-numbered licenses shall expire on November 30 of the odd-numbered year, next succeeding the year in which the license is issued.
d. Issuance of license and renewal of such license.
1. A license or renewal thereof shall be issued to a person to conduct the business of an electronic cigarette retail dealer for each place of business where such person engages in the retail sale of electronic cigarettes in the city only where:
(a) an applicant for a license or renewal thereof meets all the requirements prescribed herein and any criteria in addition thereto established by the commissioner by rule as deemed necessary to effectuate the purposes of this subchapter;
(b) an applicant satisfies the commissioner that such person is fit and able to conduct the business of an electronic cigarette retail dealer;
(c) the commissioner has not received notification from the commissioner of health and mental hygiene that the applicant is not in full compliance with any provision of chapter 7 of title 17 of this code or any rules promulgated by the commissioner of health and mental hygiene to effectuate the purposes of such provisions; and
(d) the number of licenses in the community district in which the place of business of such applicant is located is lower than the community district electronic cigarette retail dealer cap.
2. An electronic cigarette retail dealer license shall not be assignable and shall be valid only for the persons in whose names it is issued and for the transaction of business in the place of business designated therein and shall at all times be conspicuously displayed at the place of business for which it is issued.
e. Community district electronic cigarette retail dealer cap.
1. After the expiration of the 90 day application period described in paragraph 2 of subdivision b of this section, the department may process applications for up to 120 days. After such 120 days, the commissioner shall establish a community district electronic cigarette retail dealer cap for each community district in the city. The initial community district electronic cigarette retail dealer cap shall be 50 percent of the total number of licenses issued to electronic cigarette retail dealers in the community district as determined by the department.
2. The department, in conjunction with the department of health and mental hygiene, shall evaluate community district electronic cigarette retail dealer caps every two years and any time community district boundaries change. Such evaluation shall include consideration of the number of electronic cigarette retail dealers and the prevalence of electronic cigarette use. If, based on the evaluation, the department of health and mental hygiene recommends further reductions to the community district electronic cigarette retail dealer cap, the department of health and mental hygiene shall advise the speaker of the city council of such recommendation.
3. Notwithstanding paragraph 3 of subdivision b, and subparagraph d of paragraph 1 of subdivision d, of this section, if:
(a) a license of an electronic cigarette retail dealer expires at the end of a license term, such retail dealer may apply for renewal of such license;
(b) a business whose owner has been issued an electronic cigarette retail dealer is sold, the succeeding owner may apply for a license for use at the same location, provided that the electronic cigarette retail dealer selling such business was in good standing at the time of such sale, and the application is received within thirty days of the applicable change of ownership;
(c) an electronic cigarette retail dealer license becomes void pursuant to section 20-110, the succeeding beneficial owners of 10 percent or more of the stock of the organization to which a license had been granted may apply for a license provided that such electronic cigarette retail dealer was in good standing at the time the license became void, and the application is received within thirty days of the change of ownership; and
(d) an electronic cigarette retail dealer license becomes void pursuant to section 20-111, the succeeding partnership may apply for a license, provided that such retail dealer was in good standing at the time the license became void and the application is received within thirty days of the change in ownership.
(L.L. 2017/144, 8/28/2017, eff. 1/25/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2017/144.
a. In addition to the civil penalties authorized by section 17-710 for a violation of subdivision b of section 17-704.1 or of subdivision a-1 of section 17-706, an electronic cigarette retail dealer license shall be revoked for a second violation of subdivision b of section 17-704.1 or subdivision a-1 of section 17-706 involving the unlawful delivery or sale of electronic cigarettes occurring on different days at the same place of business within a three-year period. Any violation of subdivision b of section 17-704.1 or subdivision a-1 of section 17-706 involving the unlawful delivery or sale of electronic cigarettes by any license holder at a place of business shall be included in determining the number of violations by such license holder and by any subsequent license holder at the same place of business unless the subsequent license holder provides the commissioner with adequate documentation demonstrating that the subsequent license holder acquired the premises or business through an arm's length transaction and that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original licensee to avoid the effect of violations on the premises. An electronic cigarette retail dealer license shall be revoked at the same hearing at which an electronic cigarette retail dealer is found liable for a second violation or subsequent violations at the same place of business within a three-year period.
b. For the purposes of this subdivision, the term "arm's length transaction" shall have the same definition as contained in subdivision d of section 20-202.
(L.L. 2017/144, 8/28/2017, eff. 1/25/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2017/144.
Subchapter 36: Third-Party Food Delivery Services
As used in this subchapter, the following terms have the following meanings:
Base wage. The term "base wage" means money paid, whether by the hour or otherwise, to a food delivery worker by a third-party food delivery service in exchange for work performed, not including gratuities, bonuses, allowances, shift differentials or other monetary payments that may contribute to such food delivery worker's total compensation.
Credit card. The term "credit card" means any credit card, charge card, courtesy card, debit card, or other device issued by a person to another person which may be used to obtain a cash advance or a loan or credit, or to purchase or lease property or services on the credit of the person issuing the credit card or a person who has agreed with the issuer to pay obligations arising from the use of a credit card issued to another person.
Customer data. The term "customer data" means the following information provided to a third-party food delivery service by a customer who has placed an online order:
(i) Name;
(ii) Telephone number;
(iii) E-mail address;
(iv) The delivery address of the online order; and
(v) The contents of the online order being requested to be fulfilled by a food service establishment.
Delivery fee. The term "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. The term does not include any other fee that may be charged by a third-party food delivery service to a food service establishment, such as fees for listing or advertising the food service establishment on the third-party food delivery platform or fees related to processing the online order.
Direct telephone number. The term "direct telephone number" means a telephone number by which the caller communicates directly with a food service establishment, which is not a third-party telephone number.
Food delivery worker. The term "food delivery worker" means a natural person who is hired or retained as an independent contractor by a food service establishment, as an independent contractor of a third-party food delivery service or as an independent contractor of a third-party courier service, as defined in section 20-1501, to deliver food or beverage from such establishment to a consumer in exchange for compensation.
Food service establishment. The term "food service establishment" means a business establishment located in the city where food is provided for individual portion service directly to the consumer whether such food is provided free of charge or sold, and whether consumption occurs on or off the premises or is provided from a pushcart, stand or vehicle.
Gratuity. The term "gratuity" means a sum of money (i) paid voluntarily by a customer when placing an online order or after delivery of such online order, (ii) that is in addition to the purchase price and other mandatory charges such as taxes and fees, (iii) the amount of which the customer may choose, and (iv) that is referred to on the third-party food delivery platform as a gratuity, tip or other similar term that would suggest to a reasonable person that the sum, or a substantial portion thereof, would be received by the food delivery worker delivering goods in addition to such food delivery worker's base wage.
Internet-based payment system. The term "internet-based payment system" means any mobile application or other internet service that facilitates electronic payments.
Online order. The term "online order" means any order placed by a customer through or with the assistance of a third-party food delivery platform, including a telephone order.
Purchase price. The term "purchase price" means the total price of the items contained in an online order that are listed on the menu of the food service establishment where such order is placed. Such term does not include taxes, gratuities and any other fees that may make up the total cost to the customer of an online order.
Telephone order. The term "telephone order" means an order placed by a customer through a third-party telephone number.
Third-party food delivery platform. The term "third-party food delivery platform" means the online or mobile platform of the third-party food delivery service on which a customer can view products available for sale and place an online order for a food service establishment's products.
Third-party food delivery service. The term "third-party food delivery service" means any website, mobile application or other internet service that:
(i) offers or arranges for the sale of food and beverages prepared by, and the same-day delivery or same-day pickup of food and beverages from, a food service establishment; and
(ii) that is owned and operated by a person other than the person who owns such food service establishment.
Third-party telephone number. The term "third-party telephone number" means a telephone number for a food service establishment that is provided by or on behalf of a third-party food delivery service, through which an online order may be placed.
Toilet facility. The term "toilet facility" means a toilet facility on the premises of a food service establishment that is a dedicated facility for its patrons or that is a dedicated facility for its employees to the extent such establishment does not have a dedicated facility for its patrons.
Transaction fee. The term "transaction fee" means a charge for the processing of a payment for an online order imposed upon a third-party food delivery service either by:
(i) a credit card issuer or
(ii) an internet-based payment system.
(L.L. 2021/100, 9/26/2021, eff. 1/24/2022; Am. L.L. 2021/110, 10/24/2021, eff. 1/24/2022; Am. L.L. 2021/117, 10/24/2021, eff. 1/24/2022)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/117.
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