Editor's note: this section has been amended by L.L. 2023/151, 11/17/2023, eff. 5/15/2024.
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. (i) Prior to July 1, 2016, any person who violates this section shall receive a written warning for the first violation, and shall be liable for a civil penalty in the amount of two hundred fifty dollars for each open door or window for a second violation within an eighteen month period and five hundred dollars for each open door or window for any third and subsequent violation within an eighteen month period, except that such person shall be liable for a civil penalty in the amount of five hundred dollars for each open door or window for a second violation within an eighteen month period and one thousand dollars for each open door or window for any third and subsequent violation within an eighteen month period if the violation occurs at a store that is part of a chain of stores.
(ii) On and after July 1, 2016, any person who violates this section shall be liable for a civil penalty in the amount of two hundred fifty dollars for each open door or window for the first violation and 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 five hundred dollars for each open door or window for the first violation and 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.
(iii) All violations issued prior to July 1, 2016, shall continue to count toward the cumulative total of violations issued to a person for the purpose of assessing the amount of a civil penalty under paragraph (i) or (ii) of this subdivision.
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.
(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)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2008/038.