DOS-10-16-00020-P Unlawful Discriminatory Practice by Brokers and Salespersons  

  • 3/9/16 N.Y. St. Reg. DOS-10-16-00020-P
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 10
    March 09, 2016
    RULE MAKING ACTIVITIES
    DEPARTMENT OF STATE
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. DOS-10-16-00020-P
    Unlawful Discriminatory Practice by Brokers and Salespersons
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    Amendment of section 175.17 of Title 19 NYCRR.
    Statutory authority:
    Executive Law, section 91; Real Property Law, section 442(k)(1)
    Subject:
    Unlawful discriminatory practice by brokers and salespersons.
    Purpose:
    To discourage invidious discrimination in making housing accommodations available to the public.
    Text of proposed rule:
    Section 175.17 of Part 175 of Title 19 of the New York Codes, Rules and Regulations is amended to read as follows:
    175.17 Prohibitions in relation to solicitation and unlawful discriminatory practice.
    (a)(1) No broker or salesperson shall induce or attempt to induce an owner to sell or lease any residential property or to list same for sale or lease by making any representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion [or], national origin, age, sex, sexual orientation, disability, gender identity, military status, familial status or any other protected category under any federal, state or local law applicable to the activities of real estate licensees in New York State.
    ([b]2)
    ([1]i) No licensed real estate broker or salesperson shall solicit the sale, lease or the listing for sale or lease of residential property after such licensee has received written notice from an owner thereof that such owner or owners do not desire to sell, lease or list such property.
    ([2]ii) Notice provided under the provisions of this subdivision to a real estate broker shall constitute notice to all associate brokers and salespersons who are employed by the real estate broker.
    ([c]3)
    ([1]i) No licensed real estate broker or salesperson shall solicit the sale, lease or the listing for sale or lease of residential property from owner of residential property located in a designated cease-and-desist zone if such owner has filed a cease-and-desist notice with the Department of State indicating that such owner or owners do not desire to sell, lease or list their residential property and do not desire to be solicited to sell, lease or list their residential property.
    ([2]ii) 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, 2014
    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 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 along East River to Westchester Creek; thence northerly, northwesterly and northeasterly along Westchester Creek to East Tremont Avenue; thence southwesterly, northwesterly and westerly along East Tremont Avenue 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, 2014
    Within the County of Queens as follows:
    All that area of land in the County of Queens, City of New York, otherwise known as Bayside, Bellerose, Queens Village, Rockaways, South Ozone Park, Woodhaven and Whitestone bounded and described as follows:
    Bayside: Located in northern Queens. Francis Lewis Boulevard to the west, 233rd Street to the east, Grand Central Parkway to the south and Cross Island Parkway to the north and bounded by the geographical boundaries of the following zip codes: 11361, 11359, 11360, and 11364.
    Bellerose: Little Neck Parkway to the east, Grand Central Parkway to the west, the Credmoor State Hospital grounds to the north and Braddock and Jamaica Avenues to the south and bounded by the geographical boundary of the zip code 11426.
    Queens Village: Nassau County and Belmont Park to the east, Cambria Heights and St. Albans to the south. Hollis to the west, and Bellerose and Holliswood to the north and bounded by the geographical boundaries of the following zip codes: 11427, 11428 and 11429.
    Rockaways: Located in southern Queens. 11 miles long peninsula with Jamaica Bay to the north, the Atlantic Ocean to the south and Nassau County to the east and bounded by the geographical boundaries of the following zip codes: 11690, 11691, 11692, 11693, 11694, 11695 and 11697.
    South Ozone Park: Van Wyck Expressway to the east, Aqueduct Race Track to the west, Liberty Avenue to the north and Conduit Avenue and Belt Parkway to the south and bounded by the geographical boundaries of the zip code 11420.
    Woodhaven: Forest Park and Park Lane South to the north, Richmond Hill to the east, Ozone Park and Atlantic Avenue to the south and borough of Brooklyn to the west and bounded by the geographical boundaries of the zip code 11421.
    Whitestone: Located in northern Queens between the East River to the north and 25th Avenue to the south, Whitestone Bridge to the west and the Throgs Neck Bridge to the east and bounded by the geographical boundaries of the zip code 11357.
    Cease and Desist Zone
    (Mill Basin/Brooklyn)
    Zone
    Expiration Date
    County of Kings (Brooklyn)
    November 30, 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, 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 Kings Highway; thence 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.
    ([3]iii) The names and addresses of owners who have filed a cease-and-desist notice with the Department of State shall be compiled according to the street address for each cease-and-desist zone. Following the first compilation of a list, the list shall be revised and updated annually on or before December 31st. Individual lists shall be identified by geographic area and year.
    ([4]iv) A copy of each cease-and-desist list shall be available for inspection at the following offices of the Department of State:
    Department of State Division of Licensing Services 80 South Swan Street, 10th Floor Albany, New York 12231-0001
    Department of State Division of Licensing Services State Office Building Annex 164 Hawley Street Binghamton, New York 13901-4053
    Department of State Division of Licensing Services 65 Court Street Buffalo, New York 14202-3471
    Department of State Division of Licensing Services Hughes State Office Building Syracuse, New York 13202-1428
    Department of State Division of Licensing Services State Office Building Veterans Memorial Highway Hauppauge, New York 11788-5501
    Department of State Division of Licensing Services 114 Old Country Road Mineola, New York 11501-4459
    Department of State Division of Licensing Services 123 William Street New York, New York 10038-3804
    ([5]v) The cost of each list complied pursuant to this subdivision shall be $10 and shall be available upon written request to the following address:
    Department of State Division of Licensing Services 123 William Street New York, New York 10038-3804
    ([6]vi) The original cease-and-desist notice shall be filed with the Department of State's Division of Licensing Services at 123 William Street, New York, New York 10038-3804, and shall be available for public inspection and copying upon written request and appointment.
    ([7]vii) For the purposes of Real Property Law, section 441-c, it shall not be a demonstration of untrustworthiness or incompetence for a licensee to solicit an owner who had filed a cease-and-desist notice with the Department of State if the owner's name and address do not appear on the current cease-and-desist list compiled by the Department of State pursuant to [paragraph (3) of this subdivision] subparagraph (iii) of this paragraph.
    ([d]4)
    ([1]i) For the purposes of this [section]subdivision, solicitation shall mean an attempt to purchase or rent or an attempt to obtain a listing of property for sale, for rent or for purchase. Solicitation shall include but not be limited to use of the telephone, mails, delivery services, personal contact or otherwise causing any solicitation, oral or written, direct or by agent:
    ([i]a) to be delivered or presented to the owner or anyone else at the owner's home address;
    ([ii]b) to be left for the owner or anyone else at the owner's home address; or
    ([iii]c) to be placed on any vehicle, structure or object located on the owner's premises.
    ([2]ii) Solicitation shall not include classified advertising in regularly printed periodicals that are not primarily real estate related; advertisements placed in public view if they are not otherwise in violation of this [section]subdivision; or radio and television advertisements.
    ([e]5) For the purposes of this [section]subdivision, residential property shall mean one-, two- or three-family houses, including a cooperative apartment or condominium.
    (b) No real estate broker or salesperson shall engage in an unlawful discriminatory practice, as proscribed by any federal, state or local law applicable to the activities of real estate licensees in New York State. A finding by any federal, state or local agency or court of competent jurisdiction that a real estate broker or salesperson has engaged in unlawful discriminatory practice in the performance of licensed real estate activities shall be presumptive evidence of untrustworthiness and will subject such licensee to discipline, including a proceeding for revocation. Nothing herein shall limit or restrict the Department from otherwise exercising its authority pursuant to section 441-c of the Real Property Law.
    Text of proposed rule and any required statements and analyses may be obtained from:
    David A. Mossberg, NYS Department of State, 123 William Street, 20th Fl., New York, NY 10038, (212) 407-2063, email: david.mossberg@dos.ny.gov
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    45 days after publication of this notice.
    This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
    Regulatory Impact Statement
    1. Statutory authority:
    New York Executive Law § 91 authorizes the Secretary of State to: “adopt and promulgate such rules which shall regulate and control the exercise of the powers of the department of state.” New York Real Property Law (RPL) § 442(k)(1) authorizes the State Real Estate Board “to promulgate rules or regulations affecting brokers and sales persons.”
    2. Legislative objectives:
    Article 12-A of the Executive Law was enacted, inter alia¸ to provide for the regulation and licensure of real estate brokers and salespersons in order to ensure competent and trustworthy delivery of real estate brokerage services to the public. As a matter of law and public policy, it is unlawful to deny or otherwise withhold a housing accommodation based on race, creed, color, national origin, sexual orientation, military status, sex, age, disability, gender identity, marital status, or familial status, and any other protected category under applicable federal, state or local law. A real estate broker or salesperson who engages in such an act or facilitates its commission is subject to discipline by the Department for this conduct. The State Real Estate Board, empowered to issue regulations affecting brokers and salespersons to safeguard the interests of the public, finds that such discrimination in the availability and provision of housing is so injurious to the public welfare as to warrant explicit regulatory guidance and notice of severe sanction against an offending licensee.
    3. Needs and benefits:
    The rulemaking provides clear guidance to brokers and salespersons that the Department of State will take vigorous action to revoke the license of, or otherwise discipline, a real estate broker or salesperson who has engaged in acts of discrimination in the housing market. It also clarifies that the holdings of other administrative agencies or courts finding such unlawful activity will constitute presumptive evidence of untrustworthiness, and will not be a bar to a parallel or subsequent Departmental disciplinary proceeding.
    4. Costs:
    a. Costs to regulated parties:
    The Department does not anticipate any additional costs to implement the rule.
    b. Costs to the Department of State, the State, and local governments:
    The Department does not anticipate any additional costs to implement the rule.
    5. Local government mandates:
    The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.
    6. Paperwork:
    The rule does not impose any paperwork requirement on licensees.
    7. Duplication:
    The Department currently possesses authority to discipline brokers and salesperson for untrustworthy conduct. This rulemaking, without diminishing such broad authority, underscores the serious and corrosive nature of discrimination in the housing market and serves as notice to the licensees that they must avoid engaging in such conduct.
    8. Alternatives:
    The Department considered not proposing the instant rulemaking. However, it was determined that this rule is needed to provide clear guidance to brokers and salespersons.
    9. Federal standards:
    The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
    10. Compliance schedule:
    Immediate upon adoption.
    Regulatory Flexibility Analysis
    1. Effect of rule:
    The rulemaking provides clear guidance to brokers and salespersons that the Department of State will take vigorous action to revoke the license of, or otherwise discipline, a real estate broker or salesperson who has engaged in acts of unlawful discrimination in the housing market. It also clarifies that the findings of other administrative agencies or courts leading to a determination that such unlawful action has taken place will constitute presumptive evidence of untrustworthiness in a Departmental disciplinary proceeding. The regulation should help small businesses avoid unlawful activity. The rule does not have a direct impact on local governments.
    2. Compliance requirements:
    The rule does not impose any reporting, record keeping or other compliance requirement on real estate licensees or local governments.
    3. Professional services:
    The rule does not impose any compliance requirements on real estate licensees or local governments.
    4. Compliance costs:
    The rule does not impose any compliance costs on real estate licensees or local governments.
    5. Economic and technologic feasibility:
    The rule does not impose any new technology requirements on applicants or local governments.
    6. Minimizing adverse impact:
    The rule will not adversely impact small businesses or local governments.
    7. Small business participation:
    The members of the Department’s Real Estate Board, many of whom operate small businesses, participated in the development of this rulemaking. In addition, the formal public comment period commencing upon publication of this Notice of Proposed Rule Making will provide further opportunity for participation in the rule making process.
    Rural Area Flexibility Analysis
    1. Types and estimated numbers of rural areas:
    The rule will apply to real estate brokers and salespersons licensed pursuant to Article 12-A of the Real Property Law. Real estate brokerage businesses operate in rural areas throughout the state.
    2. Reporting, recordkeeping and other compliance requirements; and professional services:
    The Department does not anticipate that any reporting or recordkeeping will be required in order to comply with this rule.
    3. Costs:
    The Department does not anticipate any additional costs to implement the rule.
    4. Minimizing adverse impact:
    This rule does not adversely impact any rural area.
    5. Rural area participation:
    Comments will be received and entertained during the public comment period associated with this Notice of Proposed Rulemaking.
    Job Impact Statement
    1. Nature of impact:
    The rulemaking will provide clear guidance to brokers and salespersons that the Department of State will take vigorous action to revoke the license of, or otherwise discipline, a real estate broker or salesperson who has engaged in acts of discrimination in the housing market. It will have no significant impact on jobs.
    2. Categories and numbers affected:
    There are approximately 55,124 brokers and 67,534 salespersons who would be subject to this rulemaking.
    3. Regions of adverse impact:
    The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or employment opportunities.
    4. Minimizing adverse impact:
    This rule does not significantly impact jobs.

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