a. For the purposes of this section, the following terms shall have the following meanings:
Chain of stores. The term "chain of stores" means five or more stores located within the city of New York that are engaged in the same general field of business and conduct business under the same business name or operate under common ownership or management or pursuant to a franchise agreement with the same franchisor.
Commercial building or structure. The term "commercial building or structure" means a building or structure, or a portion thereof, classified in accordance with section BC 302 of the New York city building code in occupancy group B or M.
Door. The term "door" means any door used to close off any exterior entrance to a commercial building or structure and that when open allows for the co-mingling of indoor and outdoor air, but shall not include doors that (i) adjoin indoor seating areas where food or beverages are served and link such areas to the outside or (ii) allow for direct service of food or beverages to outdoor space during times when servers are actively engaged in serving such space.
Person. The term "person" means (i) with respect to the portion of a commercial building or structure that is a retail or wholesale establishment that sells goods or provides services to consumers, the owner or lessee of such establishment; and (ii) with respect to any other portion of a commercial building or structure, the record owner or lessee of such building or structure.
Window. The term "window" means any window used to close off any exterior opening to a commercial building or structure and that when open allows for the co-mingling of indoor and outdoor air, but shall not include windows (i) in restaurants that adjoin indoor seating areas where food or beverages are served and link such areas to the outside or (ii) that allow for direct service of food or beverages to outdoor space during times when servers are actively engaged in serving such space.
b. Except as provided in subdivision c of this section, it shall be unlawful to keep open any exterior door or window of a commercial building or structure while an air conditioner or central cooling system is operating that cools the area adjacent to such door or window, except as needed to permit the ingress and egress of people and the delivery and shipping of goods.
c. The provisions of this section shall not apply when an emergency situation exists that requires an exterior door or window to be kept open.
d. The department shall have the authority to enforce the provisions of subdivision b of this section. A proceeding to recover any civil penalty prescribed by subdivision e of this section shall be commenced by the service of a notice of violation, which shall be returnable to the environmental control board or to any tribunal authorized to adjudicate notices of violation issued by the department. The environmental control board or such tribunal shall have the power to impose any civil penalty prescribed by subdivision e of this section.
e. Any person who violates this section shall be liable for a civil penalty in the amount of zero dollars for each open door or window for the first violation and not more than five hundred dollars for each open door or window for any second and subsequent violation within an eighteen month period, except that such person shall be liable for a civil penalty in the amount of not more than five hundred dollars for each open door or window for the first violation and not more than one thousand dollars for each open door or window for any second and subsequent violation within an eighteen month period if the violation occurs at a store that is part of a chain of stores.
f. Every store that is part of a chain of stores shall conspicuously post on each door a notice that states that violations of this section may be reported to 311. Such notice must be in the form and must contain the content as provided by the commissioner on the department's website. Notwithstanding subdivision e of this section, any person who violates this subdivision or any rule promulgated thereunder shall be liable for a civil penalty not to exceed five hundred dollars, except that a person shall be subject to a civil penalty of zero dollars for the first violation of this subdivision or any rule or regulation promulgated thereunder, if such person proves to the satisfaction of the department, within thirty days of the issuance of the notice of violation and prior to the commencement of an adjudication of the violation, that the violation has been cured. The submission of proof of a cure, if accepted by the department as proof that the violation has been cured, shall be deemed an admission of liability for all purposes. The option of presenting proof that the violation has been cured shall be offered as part of any settlement offer made by the department to a person who has received, for the first time, a notice of violation of this subdivision or any rule promulgated thereunder. The department shall permit such proof to be submitted electronically or in person. A person may seek review, in the department’s administrative tribunal, of the determination that the person has not submitted proof of a cure within fifteen days of receiving written notification of such determination.
(L.L. 2015/092, 10/7/2015, eff. 10/7/2015 and 11/6/2015; Am. L.L. 2017/122, 7/22/2017, eff. 7/22/2017; Am. L.L. 2023/151, 11/17/2023, eff. 5/15/2024)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2008/038.