[HISTORY: Adopted by the County Legislature of the County
of Rockland as indicated in article histories. Amendments noted where
applicable.]
[Adopted 4-6-2021 by L.L. No. 1-2021]
This article shall be known as the "Rockland County Emergency
Restaurant Protection Act."
A.
Since the start of the global pandemic, New York restaurants have
been forced to limit in-person dining which has had a devastating
impact to the restaurant industry and those they employ. The New York
State Restaurant Association reports that sales decreased 44% between
January 2020 and January 2021. Most restaurant operators do not expect
business conditions to improve in the next several weeks and most
New York restaurant operators do not expect a return to normal business
conditions any time soon. These worsening business conditions have
led to additional losses in recent weeks with 54% of New York operators
saying they laid off or furloughed employees in December 2020 and
January 2021.
B.
Third-party delivery services are charging restaurants fees, sometimes
more than 30%, which further reduce the profits of an already struggling
industry. The Rockland County Legislature finds that it is necessary
to regulate and cap the fees that third-party delivery services may
charge restaurants during declared states of emergency when in-person
dining has been limited or restricted altogether. This article is
intended to prohibit third-party delivery services from charging more
than a 15% delivery service fee per order and more than a 5% fee per
order for other types of charges. Furthermore, this article offers
protections to delivery services drivers and others that receive gratuities
by prohibiting third-party delivery service platforms from reducing
compensation paid to them. The Rockland County Legislature believes
that restricting fees will aid over-burdened and struggling restaurants
in Rockland County and will offer the necessary protections to the
most vulnerable front-line workers so that their compensation is not
reduced in any way.
For the purposes of this title, the following definitions shall
apply to the following terms:
The period during which a state disaster emergency has been
declared by the Governor of the State of New York or a state of emergency
has been declared by the County Executive, such declaration is in
effect in the County, and there are restrictions on on-premises dining
at food service establishments in the County.
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 service
platform or fees related to processing the online order.
A place where food is prepared and intended for individual
portion service and includes the site at which the individual portions
are provided whether consumption occurs on or off the premises. The
term excludes 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 provided,
prepared, serves and consumes the food such as a "covered-dish supper"
limited to a congregation, club or fraternal organization.
Any order placed by a customer through or with the assistance
of a platform provided by a third-party food delivery service, including
a telephone order.
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.
Any website, mobile application or other internet service
that 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 food service establishments located in the County that are owned
and operated by different persons.
A.
It shall be unlawful for a third-party food delivery service to charge
a food service establishment a delivery fee that totals more than
15% of the purchase price of each online order.
B.
It shall be unlawful for a third-party food delivery service to charge a food service establishment any fee or fees other than a delivery fee for the use of its service greater than 5% of the purchase price of each online order. Any fees or other charges from a third-party food delivery service to a food service establishment beyond such maximum five-percent fee per order, and a delivery fee collected pursuant to Subsection A of this section, are unlawful, provided that such cap shall not apply to a credit card fee that is charged to the third-party food delivery service and is charged in the same amount by the third-party food delivery service to such food service establishment.
C.
It shall be unlawful for a person to cause a third-party food delivery
platform to reduce the compensation rate paid to a delivery service
driver or garnish gratuities in order to comply with this section.
D.
The requirements of this section apply only during a declared emergency
and for a period of 90 days after the end of a declared emergency.
If a third-party food delivery service charges a food service
establishment fees that violates this article, the food service establishment
shall provide written notice to the third-party food delivery service
requesting a refund within seven days. If the third-party food delivery
service does not provide the refund requested after seven days or
the third-party food delivery service continues to charge fees in
violation of this order after the initial notice and seven-day cure
period, a food service establishment may enforce this article by means
of a civil action seeking damages and injunctive relief. The prevailing
party in any such action shall be entitled to an award of reasonable
attorney fees.
If any section, subsection, sentence, clause, phrase or other
portion of this article is, for any reason, declared unconstitutional
or invalid, in whole or in part, by any court of competent jurisdiction,
such portion shall be deemed severable, and such unconstitutionality
or invalidity shall not affect the validity of the remaining portions
of this article, which remaining portions shall continue in full force
and effect.
This article shall be null and void on the day that statewide
legislation goes into effect, incorporating either the same or substantially
similar provisions as are contained in this law, unless state law
specifically excepts from preemption earlier enacted local laws in
this area. The County Legislature may determine via resolution whether
or not identical or substantially similar statewide legislation, or
pertinent preempting state or federal regulations, has been enacted
for the purposes of triggering the provisions of this section.
This article shall take effect immediately upon being filed
with the New York Secretary of State.
