[HISTORY: Adopted by Dutchess County 10-12-2021 by L.L. No. 5-2021. Amendments noted where applicable.]
STATUTORY REFERENCES
Violation a misdemeanor – See NY Public Health Law § 12-b.
Environmental quality review – See Environmental Conservation
Law Art. 8.
A.
Food service establishments in Dutchess County are encountering unscrupulous
practices by unauthorized third-party food ordering services who misrepresent
menus and purchase prices. Such practices have led to reputational
and financial harm to food services establishments. This local law
requires a food service establishment and a third-party food ordering
service to enter into an agreement prior to the establishment's information
appearing on said service's platform.
B.
This article partially codifies Local Emergency Order #13, Section
2 issued on January 17, 2021, and rescinded on August 13, 2021.
As used in this article, the following terms shall have the
meanings indicated:
The total price of an item or good for sale listed on a website
owned and/or maintained by the food service establishment, menu or
display boards found on the premise of the food service establishment
or listed on free or paid promotional materials at the request of
the food service establishment.
Any restaurant, dining room, food truck, or other business
engaged in the preparation and service of food for consumption by
the general public on or off premises.
Any order placed by a customer through or with the assistance
of a platform provided by a third-party food ordering service, including
a telephone order.
Any website, mobile application, telephone service, or other
internet service that offers or arranges for sale of food and beverages.
A.
A third-party food ordering service shall not arrange for an online
order from a food service establishment without such food service
establishment expressly authorizing such third-party food ordering
service to take orders and/or to deliver food and/or beverages prepared
by such food service establishment.
B.
A third-party food ordering service shall be prohibited from listing a food service establishment on its application and/or website as a participating food service establishment without first executing a written agreement pursuant to Subsection A of this section.
C.
In the event a third-party food ordering service receives a written
request from a food service establishment requesting that such food
service establishment be removed from such third-party food ordering
service's application and/or website, such third-party food ordering
service shall confirm receipt of such request and shall remove such
food service establishment from its application and/or website within
five business days of receipt.
D.
No third-party food ordering service shall falsely represent or increase
the advertised purchase price of any item or good offered for sale
at a food service establishment nor shall they make any misleading
representation or false advertisement as to the same.
(1)
A food service establishment shall notify any authorized third-party
food ordering service of any permanent advertised purchase price alterations.
E.
Nothing in this article shall restrict a third-party food ordering
service from charging or collecting taxes, gratuities, or any other
fees for an online order.
F.
Any applicable taxes for an online order shall be listed separate
from gratuities or any other fees.
A.
The Dutchess County Commissioner of Behavioral and Community Health
or his designee shall be vested with the power to promulgate rules
and regulations consistent with and in furtherance of implementing
this article.
B.
Prior to the law's enaction, the County shall notify each holder
of a permit to operate a food service establishment of this article.
C.
Any third-party food ordering service which fails to comply with
this article shall be subject to an administrative penalty and enforceable
by the Dutchess County Commissioner of Behavioral and Community Health,
or her/his designee.
D.
A person who willfully violates or refuses or omits to comply with
any lawful order or regulation prescribed by any local board of health
or local health officer, is guilty of a misdemeanor pursuant to NY
Public Health Law Section 12-b, punishable by a fine not to exceed
$500 or imprisonment not to exceed six months or both such fine and
imprisonment, enforceable by the Dutchess County District Attorney.
It is hereby determined, pursuant to the provisions of the State
Environmental Quality Review Act, 8 NYECL Section 0101 et seq., and
its implementing regulations, Part 617 of 6 NYCRR, that the adoption
of this local law is a "Type II" Action within the meaning of Section
617.5(c)(20) and (27) of 6 NYCRR, and, accordingly, is of a class
of actions which do not have a significant impact on the environment
and no further review is required." [6 NYCRR Section 617.5(c)(20)
and (27) apply to: "(20) routine or continuing agency administration
and management, not including new programs or major reordering of
priorities that may affect the environment" and "(27) adoption of
regulations, policies, procedures and local legislative decisions
in connection with any action on this list."]
If any clause, sentence, paragraph, subdivision, section or
part of this article or the application thereof to any person, individual,
corporation, firm, partnership, entity, or circumstance shall be adjudged
by any court of competent jurisdiction to be invalid or unconstitutional,
such order or judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section or part of this article,
or in its application to the person, individual corporation, firm,
partnership, entity, or circumstance directly involved in the controversy
in which such order or judgement shall be rendered.
This article shall be null and void on the day that statewide
legislation goes into effect incorporating either the same of substantially
similar provisions as are contained in this article or in the event
that a pertinent state or federal administrative agency issues and
promulgates regulations preempting such action by the County of Dutchess.
This article shall be effective January 1, 2022.
