DOS-50-07-00003-E Cease and Desist Zone for County of Kings

12/12/07 N.Y. St. Reg. DOS-50-07-00003-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 50

December 12, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

EMERGENCY RULE MAKING

 

I.D No. DOS-50-07-00003-E

Filing No. 1256

Filing Date. Nov. 26, 2007

Effective Date. Nov. 26, 2007

Cease and Desist Zone for County of Kings

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of section 175.17(c)(2) of Title 19 NYCRR.

Statutory authority:

Real Property Law, section 442-h

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The Department of State held a public hearing on September 6, 2007 to determine whether this rulemaking should be proposed. At the public hearing, testimony was taken and evidence submitted to demonstrate that some residents within the proposed geographic area are subject to intense and repeated solicitation to list their homes for sale. The Department of State held the record open after the public hearing to afford others the opportunity to submit written testimony and proof. The testimony and evidence submitted to the Department of State amply demonstrates that some residents within the proposed geographic area are the subject of intense and repealed solicitation to list their homes for sale. This rule making will benefit residents of the defined area by providing a mechanism for them to notify the Department of State that they do not wish to be solicited. An existing cease and desist zone protecting a portion of the defined geographic area is due to expire on November 30, 2007. The Department of State has determined that these, and other residents, are in need of continued protection.

Subject:

Cease and desist zone for the County of Kings.

Purpose:

To extend and expand an existing cease and desist zone for the County of Kings.

Text of emergency rule:

An Amendment to 19 NYCRR Part 175.17(c)(2) is adopted to read as follows:

(c)(2) The following geographic areas are designated as cease-and-desist zones, and, unless sooner redesignated, the designation for the following cease-and-desist zones shall expire on the following dates:

Zone.................................................Expiration Date

County of Bronx...............................August 1, 2009

Within the County of Bronx as follows:

All that area of land in the County of Bronx, City of New York, otherwise known as Community Districts 9, 10, 11 and 12, and bounded and described as follows: Beginning at a point at the intersection of Bronx County and Westchester County boundary and Long Island Sound; thence southerly along Long Island Sound while including City Island to East River; thence westerly and northwesterly along East River to Bronx River; thence northwesterly and northerly along Bronx River to Sheridan Expressway; thence northeasterly along Sheridan Expressway to Cross Bronx Expressway; thence southeasterly and easterly along Cross Bronx Expressway to Bronx River Parkway; thence northerly and northeasterly along Bronx River Parkway to East 233rd Street; thence westerly along East 233rd Street to Van Cortlandt Park East; thence northerly along Van Cortlandt Park East to the boundary of Westchester County and Bronx County; thence easterly along the boundary of Westchester County and Bronx County to Long Island Sound and the point of beginning.

Zone.................................................Expiration Date

County of Queens..............................August 1, 2009

Cease and Desist Zone

(Mill Basin/Brooklyn)

Zone.................................................Expiration Date

County of Kings (Brooklyn).....November 30, [2007] 2012

Within the County of Kings as follows:

All that area of land in the County of Kings, City of New York, otherwise known as the communities of Mill Basin, Mill Island, Bergen Beach, Futurama, [and] Marine Park and Madison Marine, bounded and described as follows: Beginning at a point at the intersection of Flatlands Avenue and the northern prolongation of Paerdegat Basin, thence southwesterly along Flatlands Avenue to Avenue N; thence westerly along Avenue N to Nostrand Avenue; thence southerly along Nostrand Avenue to [Gerritsen Avenue] Kings Highway; thence [southeasterly along Gerritsen Avenue and the southern prolongation of Gerritsen Avenue] southwesterly along Kings Highway to Ocean Avenue; thence southerly along Ocean Avenue to Shore Parkway; thence northeasterly, southeasterly, northerly, northeasterly and northerly along Shore Parkway to Paerdegat Basin; thence northwesterly along Paerdegat Basin and the northern prolongation of Paerdegat Basin; thence northwesterly along Paerdegat Basin and northern prolongation of Paerdegat Basin to Flatlands Avenue and the point of beginning.

Cease and Desist Zone

(Canarsie)

Zone.................................................Expiration Date

County of Kings (Brooklyn)................May 31, 2008

Within the County of Kings as follows:

All that area of land in the County of Kings, City of New York, bounded and described as follows:

Beginning at a point at the intersection of Ralph Avenue and the Long Island Railroad right-of-way (between Chase Court and Ditmas Avenue); thence northeasterly along the Long Island Railroad right-of-way to the northern prolongation of Bank Street; thence southeasterly along Bank Street to a point at the intersection of Bank Street and Foster Avenue; thence northeasterly continuing to a point at the intersection of Stanley Street and East 108th Street; thence southeasterly along East 108th Street to Flatlands Avenue; thence northeasterly along Flatlands Avenue to the northern prolongation of Fresh Creek Basin; thence southeasterly along Fresh Creek Basin to Shore (Belt) Parkway; thence southwesterly along Shore (Belt) Parkway to Paerdegat Basin; thence northwesterly along Paerdegat Basin, and the northern prolongation of Paerdegat Basin to Flatlands Avenue; thence southwesterly along Flatlands Avenue to Ralph Avenue; thence northwesterly along Ralph Avenue to the Long Island Railroad right-of-way and the point of beginning.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire February 23, 2008.

Text of emergency rule and any required statements and analyses may be obtained from:

Whitney A. Clark, Department of State, Division of Licensing Services, P.O. Box 22001, Albany, NY 12231-0001, [phone], e-mail: [e-mail]

Regulatory Impact Statement

1. Statutory authority:

Real Property Law section 442-h(3) permits the Department of State to adopt a rule establishing a cease and desist zone for a defined geographic area if it is determined that some owners of residential real property within the defined area are subject to intense and repeated solicitation by real estate brokers and salespersons to place their property for sale with such real estate broker or salesperson. Accordingly, the Department of State has express authority to adopt this rule.

2. Legislative objectives:

In enacting Real Property Law section 442-h, the legislature highlighted the problems faced by some residents from intense and repeated solicitation to list their homes for sale. Recognizing that not all homeowners who are the subject of this solicitation are desirous of being solicited, the legislature established a procedure to determine if a cease and desist zone should be established, and a mechanism for homeowners to notify the Department of State that they do not wish to be solicited after a cease and desist zone has been established.

Thus, Real Property Law section 442-h was designed to protect the public. This rule re-enforces the objectives of the Legislature when it enacted Real Property Law section 442-h by establishing a cease and desist zone for an area that has demonstrated that some residents are the subject of intense and repeated solicitation to list their homes for sale.

3. Needs and benefits:

The Department of State held a public hearing on September 6, 2007 to determine whether this rule making should be proposed. At the public hearing, testimony was taken and evidence submitted to demonstrate that some residents within the proposed geographic area are subject to intense and repeat solicitation to list their homes for sale. The Department of State held the record open after the public hearing to afford others the opportunity to submit written testimony and proof. The testimony and evidence submitted to the Department of State amply demonstrates that some residents within the proposed geographic area are the subject of intense and repeat solicitation to list their homes for sale. This rule making will benefit residents of the defined area by providing a mechanism for them to notify the Department of State that they do not wish to be solicited.

4. Costs:

a. Costs to regulated parties:

The costs to real estate brokers and salespersons are minimal. The Department of State maintains copies of the cease and desist lists on its website. This list is available for all to view, at no cost. Additionally, the Department of State will mail a copy of the list to any person desiring a copy for the minimal cost of $10.00.

b. Costs to the Department of State:

The Department of State anticipates that the cost and implementation will be minimal, and administration of this rule will be accomplished using existing resources.

c. Costs to State and local governments:

The rule does not otherwise impose any implementation or compliance costs on State or local governments.

5. Local government mandates:

The rule does not impose any program, service, duty or other responsibility on local governments.

6. Paperwork:

The rule does not impose any paperwork requirements on licensees.

7. Duplication:

This rule extends an existing cease and desist zone that is due to expire on November 30, 2007. It does not otherwise duplicate, overlap or conflict with any other state or federal requirement.

8. Alternatives:

No alternatives were considered by the Department of State.

9. Federal standards:

There are no federal standards addressing the subject of this rule making.

10. Compliance schedule:

Licensees are currently required to comply with 19 NYCRR 175.17. The rule will extend and expand the cease and desist zone that is due to expire on November 30, 2007. Therefore, regulated parties will be on notice of, and have adequate time to comply with the requirements imposed by the proposed rule making.

Regulatory Flexibility Analysis

1. Effect of rule:

The rule affects all licensed real estate brokers and salespersons to the extent that they are prohibited from soliciting a real estate listing from a resident of the defined geographic zone who has notified the Department of State that he or she does not wish to be so solicited. Real estate brokers and salespersons will remain free, however, to solicit listings from other residents of the defined zone and to participate in regulated transactions within the zone. Insofar as the rule making seeks to extend and expand an existing cease and desist zone, it is not anticipated that the solicitation limitations will place an undue financial burden, or impose a hardship on real estate brokers and salespersons.

The rule does not apply to local governments.

2. Compliance requirements:

The Department of State publishes and makes available a list of residents within cease and desist zones who have notified the Department of State that they do not wish to be solicited by real estate brokers and salespersons. These lists are made available to real estate brokers and salespersons. To comply with the rule, they need only refer to the list prior to soliciting listings from homeowners within the defined cease and desist zone.

3. Professional services:

Small businesses will not need professional services in order to comply with this rule.

4. Compliance costs:

Licensees will not incur any significant compliances costs associated with this rule. The Department of State publishes a free list of all cease and desist lists on its website at no cost. Licensees who desire a hard copy of the lists may notify the Department of State and receive a copy of the list by mail for a cost of $10.00.

5. Economic and technological feasibility:

Small businesses will no incur any additional costs or require technical expertise as a result of implementation of this rule.

6. Minimizing adverse economic impact:

Insofar as no compliances costs are anticipated, the Department of State did not consider any remedies to minimize adverse economic impacts of the rule.

7. Small business and local government participation:

The Department of State held a public hearing to consider proposing this rule making. The hearing was publicized in advance and open to all. In addition, the Department of State kept the hearing record open in order to permit individuals and businesses to submit written testimony and evidence after the open public hearing.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

This rule does not apply to rural areas and, rather, applies only to a defined geographic area within the County of Kings.

2. Reporting, recordkeeping and other compliance requirements:

This rule, which applies only to a portion of urban Kings County, does not impose any reporting and recordkeeping requirements on licensees located within rural areas.

3. Costs:

The rule does not impose any costs on rural areas.

4. Minimizing adverse impact:

Insofar as the rule does not impose any costs on rural areas, no alternatives to minimize adverse impacts were considered by the Department of State.

5. Rural area participation:

Insofar as the rule does not apply to rural areas, rural area participation was not solicited by the Department of State.

Job Impact Statement

This rule will not have any substantial adverse impact on jobs and employment opportunities. The rule merely prohibits real estate brokers and salespersons from soliciting real estate listings from residents of a defined geographic zone who have notified the Department of State that they do not wish to be solicited. Real estate brokers and salespersons will remain free to solicit other residents within the defined zone and to engage in real estate transactions within and outside of the defined geographic area.