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Proposed Rules: Open to Comments

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Agency:
Comment By: 
Monday, August 3, 2020
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

The Department of Consumer Affairs (“DCA” or “Department”) is proposing to add new rules to implement Local Law 34 of 2020 (LL34), which prohibits food stores and retail establishments from refusing to accept payment in cash and further prohibits food stores and retail establishments from charging a higher price to consumers who pay for commodities with cash, rather than through a cashless transaction. The intent of LL34 is to ensure that all New Yorkers, including those who are unbanked or underbanked, can make retail and food purchases using cash.

 

Specifically, these proposed rules would add presumptions that a food store or retail establishment is in violation of the prohibition on cashless establishments if it displays a sign representing that it does not accept payment in cash from consumers, or if an employee or agent of such food store or retail establishment represents that it does not accept cash.  These proposed rules would further add presumptions that a food store or retail establishment is in violation of the prohibition on cashless establishments if it displays a sign representing that it charges a higher price for consumers who pay with cash rather than through a cashless transaction, or if any employee or agent of such food store or retail establishment represents that it charges a higher price to consumers who pay for commodities in cash. These presumptions are necessary to allow the Department to effectively enforce the cashless establishments law.  Without these presumptions, the Department would be required to conduct test purchases of commodities using cash to establish whether food stores or retail establishments are refusing to accept cash.  Such test purchases are too costly and inefficient to perform. 

 

These proposed rules would also add a penalty schedule for the new prohibitions on cashless establishments.  The penalties are provided by section 20-840(d) of the New York City Administrative Code. 

 

DCA’s authority for this rule is found in Sections 1043 and 2203(f) of the New York City Charter, Sections 20-104(b) and 20-702 of the New York City Administrative Code, and Section 2 of Local Law 34 of 2020.

Keywords:
Subject: 

DCA will hold a public hearing on the proposed rule regarding the prohibition on cashless establishments. The public hearing will take place at 10:00 AM on August 3, 2020. It will be accessible by phone and videoconference. Please dial 1-855-282-6330.
o Meeting number (access code): 160 481 6046
o Meeting password: zcNFs4WCF79

To participate in the public hearing via videoconference, please follow the online link: https://dcanyc.webex.com/dcanyc/j.php?MTID=m6296ab9a878ff6705674

Contact: 

Carlos Ortiz; 212 436 0345

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

On March 15, 2020, the Department of Consumer Affairs (“DCA” or “Department”) promulgated an emergency rule pursuant to section 1043(i) of chapter 45 of the New York City Charter (the “Emergency Rule”) declaring as unconscionable the practice of price gouging certain personal and household goods and services.  The Emergency Rule added a new section 5-42 of chapter 5 of title 6 of the Rules of the City of New York and amended the penalty schedule in section 6-47 of chapter 6 of title 6. 

 

The Department is proposing a new permanent rule declaring as unconscionable the practice of price gouging goods and services that are essential to health, safety and welfare, or are marketed or advertised as being essential to health, safety and welfare during a declared State of Emergency in the City of New York.

 

New York City Administrative Code § 20-701(b) permits DCA to declare as unconscionable:

 

Any act or practice in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease, rental or loan of any consumer goods or services, or in the extension of consumer credit, or in the collection of consumer debts which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer's detriment[.]

 

Price gouging occurs when a merchant takes advantage of an abnormal disruption in the marketplace and charges excessive prices, taking advantage of the consumer’s inability to bargain or seek a better price, resulting in a “gross disparity between the value received by a consumer and the price paid.” Such marketplace disruptions often occur during a State of Emergency. This rule assists in protecting consumers when they are at their most vulnerable. 

 

The permanent rule declares price gouging conduct unconscionable and aligns New York City with many jurisdictions across the country that prohibit price gouging in emergency circumstances, including New York State. The rule includes an illustrative list of goods that are essential to health, safety or welfare, and could therefore be subject to price gouging. The rule also establishes a threshold for prohibited pricing of ten percent above the price at which consumers in New York City could obtain such goods or services 30 to 60 days prior to the declaration of a State of Emergency in the City of New York. This is similar to the standard used by several other jurisdictions, including the states of New Jersey and California, in laws that prohibit price gouging.   

                                                                                                                  

To ensure that no merchant is penalized unfairly, the permanent rule provides a defense if the merchant can show that the price increase was directly attributable to additional costs imposed on it by the supplier of the goods, or directly attributable to additional costs for labor or materials used to provide the services. The permanent rule further provides an exemption for merchants who did not exploit the State of Emergency and charged the same price both 30 days prior to the declaration of a State of Emergency and during that State of Emergency. 

 

The Emergency Rule added an entry for the new price gouging prohibition to the penalty schedule for consumer protection law violations found in section 6-47 of subchapter B of chapter 6 of title 6 of the Rules of the City of New York. This entry is included in the permanent rule.

 

This permanent rule is necessary so that DCA can prevent this unconscionable trade practice and take action to protect the residents of New York City during a State of Emergency. Pursuant to section 1041(i)(2) of the New York City Charter, the Emergency Rule is hereby extended for 60 days beyond its original expiration date to allow time for issuance of the permanent rule by the normal rulemaking procedure provided for in the Charter.

Effective Date: 
Fri, 06/26/2020

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

The Department is adding new rules that require debt collectors to inform consumers about whether certain language access services are available and to retain records relating to language access services.

Approximately a quarter of the population of New York City does not understand English proficiently. Many debt collectors working to collect debts from New York City consumers, however, are not providing adequate language access services to consumers. For more background on this issue, see the Department’s publication, “Lost in Translation: Findings from Examination of Language Access by Debt Collectors.” This publication highlights the lack of language access services provided for limited-English proficiency (LEP) consumers by debt collection agencies.

These new rules enable consumers who require language access services to better understand their rights with respect to debt collection and to facilitate communication between collectors and LEP consumers. The recordkeeping requirements allow the Department to ensure that LEP consumers are receiving sufficient information when contacted by a debt collector. The prohibited practices ensure that debt collectors are not engaging in deceptive or unfair conduct with respect to language access.

Specifically, these new rules require debt collectors to:

• Inform consumers—in any initial collection notice and on any public-facing websites maintained by the collector—of the availability of any language access services provided by the collector and of a translation and description of commonly-used debt collection terms in a consumer’s preferred language on the Department’s website;

• Request, record, and retain, to the extent reasonably possible, a record of the language preference of each consumer from whom the collector attempts to collect a debt; and

• Maintain a report identifying, by language, the number of consumer accounts on which an employee of the collector attempted to collect a debt in a language other than English, and the number of employees that attempted to collect on such accounts.

These rules also prohibit debt collectors from:

• Providing false, inaccurate, or incomplete translations of any communication to a consumer in the course of attempting to collect a debt; and

• Misrepresenting or omitting a consumer’s language preference when returning, selling, or referring for litigation any consumer account, where the debt collector is aware of such preference.

Effective Date: 
Sat, 06/27/2020

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, June 12, 2020
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

A Stoop Line Stand license is required when an existing business sells fruits, vegetables, soft drinks, flowers, confectionery, or ice cream from a stand outside of and directly adjacent to its existing retail establishment. The Department of Consumer Affairs (“DCA” or “Department”) is proposing amendments to the rules governing stoop line stands. These amendments will make it easier to understand how a business can comply with the rules.

Specifically, the proposed rules:

·        

Clarify how stoop line stands must be constructed. The current language, which uses both “fence” and “partition,” has created confusion for businesses and at administrative hearings. The proposed rule would use only the term “partition.”  In addition, the proposed amendment would use language that is easier to understand and better reflects the construction of commonly used stands. 

·        

Clarify that stoop line stands may not contain partitions extending to the roof or awning above the stand and that all items must be displayed on a valid stand.  These changes will provide better notice to businesses about stoop line stand obligations. 

·        

Make explicit that a stoop line stand may not be used for preparation of any articles sold at the stand, including the packaging of fruit salad or the blending of smoothies or juices. 

·        

Require that a stoop line stand license be held by the same entity that appears on the certificate of authority for the adjacent store, as required by the Administrative Code. This proposed subdivision will allow the Department to ensure that stoop line stands are owned and operated by the adjacent store. 

·        

Change “sidewalk stands” to “stoop line stands” for uniformity with the Administrative Code. 

Sections 1043 and 2203(f) of the New York City Charter, and Sections 20-104(b) and 20-233 of the New York City Administrative Code authorize the Department of Consumer Affairs to make these proposed rules.

Keywords:
Subject: 

.Proposed Rules regarding Stoop Line Stands

Contact: 

To participate in the public hearing via teleconference, please dial 1-855-282-6330, and use the access code 478 211 433 or follow the online link: https://dcanyc.webex.com/dcanyc/j.php?MTID=m749ddf7f12e83d020e9bc530465c...

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, June 12, 2020
Proposed Rules Content: 

 

Statement of Basis and Purpose of Proposed Rule

On March 15, 2020, the Department of Consumer Affairs (“DCA” or “Department”) promulgated an emergency rule pursuant to section 1043(i) of chapter 45 of the New York City Charter (the “Emergency Rule”) declaring as unconscionable the practice of price gouging certain personal and household goods and services.  The Emergency Rule added a new section 5-42 of chapter 5 of title 6 of the Rules of the City of New York and amended the penalty schedule in section 6-47 of chapter 6 of title 6. 

The Department is proposing a new permanent rule declaring as unconscionable the practice of price gouging goods and services that are essential to health, safety and welfare, or are marketed or advertised as being essential to health, safety and welfare during a declared State of Emergency in the City of New York.

New York City Administrative Code § 20-701(b) permits DCA to declare as unconscionable:

Any act or practice in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease, rental or loan of any consumer goods or services, or in the extension of consumer credit, or in the collection of consumer debts which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer's detriment[.] 

Price gouging occurs when a merchant takes advantage of an abnormal disruption in the marketplace and charges excessive prices, taking advantage of the consumer’s inability to bargain or seek a better price, resulting in a “gross disparity between the value received by a consumer and the price paid.” Such marketplace disruptions often occur during a State of Emergency. This rule assists in protecting consumers when they are at their most vulnerable. 

The permanent rule declares price gouging conduct unconscionable and aligns New York City with many jurisdictions across the country that prohibit price gouging in emergency circumstances, including New York State. The rule includes an illustrative list of goods that are essential to health, safety or welfare, and could therefore be subject to price gouging. The rule also establishes a threshold for prohibited pricing of ten percent above the price at which consumers in New York City could obtain such goods or services 30 to 60 days prior to the declaration of a State of Emergency in the City of New York. This is similar to the standard used by several other jurisdictions, including the states of New Jersey and California, in laws that prohibit price gouging.                                                                                                           

To ensure that no merchant is penalized unfairly, the permanent rule provides a defense if the merchant can show that the price increase was directly attributable to additional costs imposed on it by the supplier of the goods, or directly attributable to additional costs for labor or materials used to provide the services. The permanent rule further provides an exemption for merchants who did not exploit the State of Emergency and charged the same price both 30 days prior to the declaration of a State of Emergency and during that State of Emergency. 

The Emergency Rule added an entry for the new price gouging prohibition to the penalty schedule for consumer protection law violations found in section 6-47 of subchapter B of chapter 6 of title 6 of the Rules of the City of New York. This entry is included in the permanent rule.

This permanent rule is necessary so that DCA can prevent this unconscionable trade practice and take action to protect the residents of New York City during a State of Emergency. Pursuant to section 1041(i)(2) of the New York City Charter, the Emergency Rule is hereby extended for 60 days beyond its original expiration date to allow time for issuance of the permanent rule by the normal rulemaking procedure provided for in the Charter.

 

Keywords:
Subject: 

.Proposed Rule on Price Gouging

Contact: 

• To participate in the public hearing via phone, please dial 1-855-282-6330 and input access code 477 857 355.

• To participate in the public hearing via videoconference, please follow the online link: https://dcanyc.webex.com/dcanyc/j.php?MTID=mb11e5e0c920280242c8860aa2598...

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

 

The Department of Consumer Affairs (“DCA” or “Department”) is amending the rules governing process servers to implement Local Law 112 of 2019, which requires the Department to conduct audits of certain process servers and creates a notification system for, among other things, suspensions and revocations of, and denials of applications for, process server licenses. 

 

In general, process servers are engaged in the business of serving summonses, subpoenas, notices, citations, or other process that direct an appearance or response to a legal or administrative proceeding. These amendments to subchapter W of chapter 2 of title 6 of the Rules of the City of New York outline the specific documents that the Department may request by subpoena from a process server in connection with an audit by the Department.  These rules also explain the procedures surrounding the audit process, including that a process server must produce most of the documents requested electronically, must respond to the subpoena within 20 days, and must certify twice annually whether it has served process in housing court within the previous six months.  Finally, these rules also require process servers and process serving agencies to provide an email address to the Department.

 

In the Notice of Public Hearing, the Department proposed that a subpoena would include a request for, among other things, records required to be kept pursuant to 6 RCNY § 2-233 and § 2-233a.  After further consideration, the Department determined that it would request only records required to be kept pursuant to §2-233a, which requires electronic retention of the original records required to be kept by §2-233.  For purposes of the subpoena authorized by this rule, the Department determined that it does not need to require submission of the original records required to be maintained by §2-233.

Effective Date: 
Wed, 06/10/2020

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

 

The Department is amending its consumer protection law penalty schedule to add an entry for violations of section 5-38 of chapter 5 of title 6 of the Rules of the City of New York, which requires sellers to comply with certain requirements when selling goods declared to be temporarily in short supply.  The Department is also adding entries for:

· Violations of section 5-09, which imposes limitations on offers made by sellers;

· Violations of section 5-33, which creates requirements for transactions negotiated in Spanish; and

· Violations of section 5-50, which creates requirements for the delivery of furniture and major appliances. 

The penalty for each of these added entries is found in section 20-703 of the New York City Administrative Code. 

 

The Department is also adding language to the penalty schedule to incorporate a maximum penalty of $500 for knowing violations of the consumer protection law code and rules, which is provided for by section 20-703 of the New York City Administrative Code.

 

Pursuant to section 1043(d)(4)(ii) of the New York City Charter, this rule was exempt from review and certification under Charter section 1043(d).

Effective Date: 
Wed, 06/10/2020

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

 

The Department of Consumer Affairs (“DCA” or “Department”) is making amendments to conform the Department’s penalty schedules to other sections of the Rules and to the Administrative Code.  These amendments affect the penalty schedules related to electronic cigarette retail dealers, sidewalk stands, electronic stores, etching acid, motorized scooters, employment agencies, air conditioning prohibitions, and bail bond agents.  Specifically, the Department is:

  • Amending the electronic cigarette retail dealer penalty schedule to implement Local Law 228 of 2019, which prohibits the sale of flavored electronic cigarettes and flavored e-liquids.  The penalties for these new violations are found in section 17-716(b) of the Administrative Code.  (Section 1).
  • Amending the sidewalk stands penalty schedule to add violations relating to newsstands that exist in the Administrative Code and Rules but are currently missing from the penalty schedule.  (Section 2).
  • Reducing the penalty amounts for violations of section 20-485.5(b) of the Administrative Code relating to electronic stores.  Currently, the penalty schedule in section 6-35 of the Rules provides for maximum penalties of $500 for all 20-485.5 violations.  However, 20-485.5(b) states that “the civil penalties imposed for a violation of this subdivision shall be those provided for violations of section 20-708 of this title.”  The penalties for violations of section 20-708, provided by section 20-711, are a maximum of $250.  (Section 3).
  • Changing the recidivism period from two years to one year for violations related to etching acid.  Currently, the penalty schedule in section 6-40 of the Rules provides for a recidivism period of two years.  However, section 20-616 of the Administrative Code provides for a one-year recidivism period.  (Section 4).
  • Changing the recidivism period from two years to one year for violations related to motorized scooters.  Currently, the penalty schedule in section 6-55 of the Rules provides for a recidivism period of two years.  However, section 20-762(c) of the Administrative Code provides for a one-year recidivism period.  (Section 5).
  • Eliminating a reference in section 6-59 of the Rules, the penalty schedule for employment agencies, to the Administrative Code containing two subchapters numbered 14 in chapter 5.  The Administrative Code no longer contains this mistaken organizational structure.  These proposed amendments would also add an entry for a violation of NY General Business Law section 189, the penalties for which are provided by section 189(5).  (Section 6).
  • Changing the recidivism period of two years to 18 months for violations related to air conditioning prohibitions.  Currently, the penalty schedule in section 6-63 of the Rules provides for a recidivism period of two years.  However, section 20-910(e)(ii) of the Administrative Code provides for an 18-month recidivism period.  (Section 7).
  • Changing the recidivism period of one year to two years for violations related to bail bond agents.  Currently, the penalty schedule in section 6-71 of the Rules provides for a recidivism period of one year.  The Administrative Code is silent as to the recidivism period of bail bond agent violations (see section 20-835).  The Department’s default recidivism period is two years unless the Administrative Code provides otherwise.  (Section 8). 
Effective Date: 
Thu, 05/21/2020

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, April 17, 2020
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The Department of Consumer Affairs (“DCA” or “Department”) is proposing to amend the Department’s consumer protection law penalty schedule to add an entry for violations of section 5-38 of chapter 5 of title 6 of the Rules of the City of New York, which requires sellers to comply with certain requirements when selling goods declared to be temporarily in short supply.  The Department is also proposing to add entries for:

·        

Violations of section 5-09, which imposes limitations on offers made by sellers;

·        

Violations of section 5-33, which creates requirements for transactions negotiated in Spanish; and

·        

Violations of section 5-50, which creates requirements for the delivery of furniture and major appliances. 

The penalty for each of these added entries is found in section 20-703 of the New York City Administrative Code. 

The Department is also proposing to add language to the penalty schedule to incorporate a maximum penalty of $500 for knowing violations of the consumer protection law code and rules, which is provided for by section 20-703 of the New York City Administrative Code.

Sections 1043 and 2203(f) of the New York City Charter and sections 20-104(e) and 20-702 of the New York City Administrative Code authorize the Department of Consumer Affairs to make this proposed rule.

Pursuant to section 1043(d)(4)(ii) of the New York City Charter, this proposed rule is exempt from review and certification under Charter section 1043(d).

Keywords:
Subject: 

.Proposed Rules regarding the Consumer Protection Law Penalty Schedule

Location: 
Department of Consumer Affairs NY
Contact: 

Carlos Ortiz; 212 436 0345

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, April 10, 2020
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The Department of Consumer Affairs (“DCA” or “Department”) is proposing to add new rules that would require debt collectors to inform consumers about whether certain language access services are available and to retain records relating to language access services.

Approximately a quarter of the population of New York City does not understand English proficiently. Many debt collectors working to collect debts from New York City consumers, however, are not providing adequate language access services to consumers. For more background on this issue, see the Department’s publication, “Lost in Translation: Findings from Examination of Language Access by Debt Collectors.” This publication highlights the lack of language access services provided for limited-English proficiency (LEP) consumers by debt collection agencies.

These proposed rules would enable consumers who require language access services to better understand their rights with respect to debt collection and to facilitate communication between collectors and LEP consumers. The proposed recordkeeping requirements would allow the Department to ensure that LEP consumers are receiving sufficient information when contacted by a debt collector. The proposed prohibited practices would ensure that debt collectors are not engaging in deceptive or unfair conduct with respect to language access.

Specifically, the proposed new rules would require debt collectors to:

• Inform consumers—in any initial collection notice and on any public-facing websites maintained by the collector—of the availability of any language access services provided by the collector and of a translation and description of commonly-used debt collection terms in a consumer’s preferred language on the Department’s website;

• Request, record, and retain, to the extent reasonably possible, a record of the language preference of each consumer from whom it attempts to collect a debt; and

• Maintain a report identifying, by language, the number of consumer accounts on which an employee of the collector attempted to collect a debt in a language other than English, and the number of employees that attempted to collect on such accounts.

The proposed rules would also prohibit debt collectors from:

• Providing false, inaccurate or incomplete translations of any communication to a consumer in the course of attempting to collect a debt; and

• Misrepresenting or omitting a consumer’s language preference when returning, selling or referring for litigation any consumer account, where the debt collector is aware of such preference.

DCA’s authority for this rule is found in Sections 1043 and 2203(f) of the New York City Charter, and Sections 20-104(b), 20-493(a), and 20-702 of the New York City Administrative Code.

Keywords:
Subject: 

Proposed Rules regarding Debt Collectors

Location: 
Department of Consumer Affairs
please dial 712-770-4010, and use the access code 789 503.
Contact: 

Carlos Ortiz; 212 436 0345; cortiz@dca.nyc.gov

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