S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4119
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 9, 2023
                                ___________
 
 Introduced  by  M.  of A. FAHY, WOERNER, BUTTENSCHON, TAYLOR, LUPARDO --
   read once and referred  to  the  Committee  on  Consumer  Affairs  and
   Protection
 
 AN  ACT  to  amend  the general business law, in relation to third-party
   food delivery service charges
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new section
 391-w to read as follows:
   § 391-W. THIRD-PARTY FOOD DELIVERY SERVICE CHARGE. 1. FOR THE PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "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 SERVICE PLATFORM OR  FEES  RELATED  TO  PROCESSING  THE  ONLINE
 ORDER.
   (B)  "FOOD SERVICE ESTABLISHMENT" MEANS A PLACE 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.
   (C) "ONLINE ORDER" MEANS ANY ORDER PLACED BY  A  CUSTOMER  THROUGH  OR
 WITH  THE ASSISTANCE OF A PLATFORM PROVIDED BY A THIRD-PARTY FOOD DELIV-
 ERY SERVICE, INCLUDING A TELEPHONE ORDER.
   (D) "PURCHASE PRICE" MEANS THE TOTAL PRICE OF THE ITEMS  CONTAINED  IN
 AN  ONLINE  ORDER THAT ARE LISTED ON THE MENU OF THE FOOD SERVICE ESTAB-
 LISHMENT 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.
   (E) "THIRD-PARTY FOOD DELIVERY  SERVICE"  MEANS  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
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01701-02-3
 A. 4119                             2
 
 SAME-DAY  PICKUP  OF  FOOD AND BEVERAGES FROM, NO FEWER THAN TWENTY FOOD
 SERVICE ESTABLISHMENTS LOCATED IN THE STATE THAT ARE OWNED AND  OPERATED
 BY DIFFERENT PERSONS.
   2. NOTWITHSTANDING ANY OTHER LAW, RULE OR REGULATION:
   (A)  NO  THIRD-PARTY FOOD DELIVERY SERVICE SHALL CHARGE A FOOD SERVICE
 ESTABLISHMENT A DELIVERY FEE THAT TOTALS MORE THAN  FIFTEEN  PERCENT  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 DELIV-
 ERY FEE PERMITTED UNDER PARAGRAPH (A) OF THIS SUBDIVISION, FOR  THE  USE
 OF SERVICES PROVIDED BY SUCH THIRD-PARTY DELIVERY SERVICE THAT IS GREAT-
 ER  THAN  FIVE  PERCENT  OF  THE  PURCHASE  PRICE  OF EACH ONLINE ORDER,
 PROVIDED THAT SUCH CAP SHALL NOT APPLY TO A PAYMENT PROCESSING 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)  ANY FEE 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 PAYMENT PROCESSING FEE PURSUANT TO  PARAGRAPH  (B)  OF  THIS
 SUBDIVISION,  AND  A DELIVERY FEE COLLECTED PURSUANT TO PARAGRAPH (A) OF
 THIS SUBDIVISION, SHALL BE UNLAWFUL.   NOTHING  IN  THIS  CHAPTER  SHALL
 PROHIBIT  AN AGREEMENT BETWEEN A FOOD SERVICE ESTABLISHMENT AND A THIRD-
 PARTY FOOD DELIVERY SERVICE TO OBTAIN  OPTIONAL  PRODUCTS  OR  SERVICES,
 INCLUDING,  BUT  NOT  LIMITED  TO,  ADVERTISING, MARKETING, OR ACCESS TO
 CUSTOMER SUBSCRIPTION PROGRAMS; AND
   (D) NO THIRD-PARTY FOOD DELIVERY  SERVICE  SHALL  REDUCE  THE  COMPEN-
 SATION,  INCLUDING  BUT NOT LIMITED TO, ANY TIP OR GRATUITY, PAID TO ANY
 WORKER, AS A RESULT OF COMPLIANCE WITH THE PROVISIONS OF THIS SECTION.
   3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
 MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
 STATE  OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN
 INJUNCTION TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND
 IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT  THE
 DEFENDANT  HAS,  IN  FACT,  VIOLATED  THIS SECTION, AN INJUNCTION MAY BE
 ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING  ANY  FURTHER
 VIOLATION,  WITHOUT  REQUIRING  PROOF THAT ANY PERSON HAS, IN FACT, BEEN
 INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT  MAY  MAKE
 ALLOWANCES  TO  THE ATTORNEY GENERAL AND DIRECT RESTITUTION OF AN AMOUNT
 NOT TO EXCEED THE AMOUNT OF FEES COLLECTED IN VIOLATION OF THIS  SECTION
 BY  A THIRD-PARTY FOOD DELIVERY SERVICE, ATTORNEYS' FEES, AND SUCH OTHER
 REMEDIES AS THE COURT MAY DEEM APPROPRIATE.  WHENEVER  THE  COURT  SHALL
 DETERMINE  THAT  A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY
 IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND  DOLLARS  FOR  EACH
 VIOLATION.  EACH  DAY  A VIOLATION OF THIS SECTION IS CONTINUED AND EACH
 FOOD SERVICE ESTABLISHMENT CHARGED A FEE IN VIOLATION  OF  THIS  SECTION
 SHALL  CONSTITUTE  A  SEPARATE  VIOLATION.  IN  CONNECTION WITH ANY SUCH
 PROPOSED APPLICATION THE ATTORNEY GENERAL IS AUTHORIZED  TO  TAKE  PROOF
 AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   4.  THIS  SECTION  SHALL SUPERSEDE AND PREEMPT ALL RULES, REGULATIONS,
 CODES, STATUTES, OR ORDINANCES OF ALL CITIES, COUNTIES,  MUNICIPALITIES,
 AND  LOCAL  AGENCIES  REGARDING  THIRD-PARTY  FOOD DELIVERY SERVICE FEES
 UNTIL EXPIRATION OF THIS SECTION.
   § 2. This act shall take effect immediately.