DOS-25-10-00008-E Cease and Desist Zones for the Counties of Queens and the Bronx

6/23/10 N.Y. St. Reg. DOS-25-10-00008-E

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 25

June 23, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

EMERGENCY RULE MAKING

 

I.D No. DOS-25-10-00008-E

Filing No. 606

Filing Date. Jun. 08, 2010

Effective Date. Jun. 08, 2010

Cease and Desist Zones for the Counties of Queens and the Bronx

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 public hearings on May 28, May 29 and June 8, 2009 to determine whether this rulemaking should be proposed. At the public hearings, 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 repeated 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. The Department of State has determined that these, and other residents, are in need of emergency protection.

Subject:

Cease and desist zones for the Counties of Queens and the Bronx.

Purpose:

To adopt cease and desist zones for the Counties of Queens and the Bronx.

Text of proposed rule:

An Amendment to 19 NYCRR section 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] 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 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.]

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 Ave; thence southwesterly, northwesterly and westerly along East Tremont Ave 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]
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 Ave 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.

	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 September 5, 2010.

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

Whitney A. Clark, Esq., Department of State, Division of Licensing Services, 80 South Swan Street, P.O. Box 22001, Albany NY 12231, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority:

Real Property Law (RPL) section 442-h(3)(a) permits the Department of State (DOS) to adopt rules establishing cease and desist zones for defined geographic areas if it is determined that some owners of residential real property within a defined area are subject to intense and repeated solicitation by real estate brokers and salespersons to place their property for sale. RPL section 442-h(3)(c) provides that a cease and desist zone shall be effective for a maximum of five years, after which the Secretary of State may re-adopt the rule to continue the cease and desist zone for additional periods not to exceed five years each. The entire County of Queens and a portion of Bronx County (Community Districts 9, 10, 11 &12) were previously subject to cease and desist rules, which rules expired on August 1, 2009.

The Department held three public hearings to determine if the rules should be readopted; two in Queens County and one in the Bronx. Based on the testimony received at these public hearings and additional documentation submitted to the Department after the close of said hearings, the Secretary has determined that some homeowners residing in portions of the Bronx are subject to intense and repeated solicitation. The Secretary also determined that, while insufficient evidence exists to readopt a cease and desist order for all of Queens County, certain portions still are subject to repeat and intense solicitation and should, properly, be protected by a cease and desist rule.

2. Legislative objectives:

In enacting RPL 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 authorized the Secretary to determine if a cease and desist zone should be established. Upon the establishment of such a zone, a homeowner may file with the Secretary a statement of desire not to be solicited. Thereafter, the Secretary will publish a list of the names and addresses of the persons who have filed the statement, and brokers and salespersons are then prohibited from soliciting persons on that list. That list is commonly referred to as a "cease and desist list."

RPL section 442-h was designed to protect the public. This proposed rule furthers the objectives of the Legislature. If adopted, the proposed rule would establish cease and desist zones for two areas that have demonstrated that some residents are subject to intense and repeated solicitation to sell their homes.

3. Needs and benefits:

Prior to proposing this rule, the Department held three public hearings. At these hearings, testimony was taken and evidence submitted about the real estate climate in Bronx and Queens and, specifically, about solicitations received by residents to sell or list their homes. Subsequent to the close of these hearings, which were held on May 28, 2009, May 29, 2009 and June 8, 2009, the Department of State continued to receive additional evidence from residents of Queens and the Bronx. The Department received testimony and evidence from elected officials, local representatives and homeowners within the proposed cease and desist zones. All comments received advocated for the adoption of the proposed rule, citing the need to curb the aggressive solicitation practices in the affected communities.

The evidence received by the Department, establishes that some homeowners within the proposed zones have received frequent mailings, unwanted flyers, telephone calls, and door-to-door solicitation soliciting the sale or listing of their property.

As of August 1, 2004, when the prior cease and desist zones were implemented, DOS had received 442 complaints from Queens and Bronx alleging violations of the cease and desist rule. The number of complaints received by the Department coupled with the testimony and evidence submitted to DOS, amply demonstrate that some residents within the proposed geographic areas are the subject of intense and repeated solicitation. This rule will benefit residents of the defined areas by providing a mechanism for them to notify DOS 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. DOS licenses approximately 10,956 real estate licensees in Queens and 2,641 in Bronx. DOS maintains copies of the cease and desist lists on its website. This list is available for all to view, at no cost. Additionally, DOS 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:

DOS anticipates that the cost and implementation of this rule will be minimal, and administration of this rule will be accomplished using existing resources. The estimated costs are as follows:

Printing owners statements	$2,200
Mailing owners statements	$640
Processing statements:
Staff: SG-13:	$37,072
SG-23:	$58,406
10 weeks:	$7,129-$11,231
Data entry:
Staff: SG-6	$25,146
SG-9:	$29,595
SG-13:	$37,072
10 days:	$688-$1,015

The costs for printing and mailing the cease and desist list are unknown. DOS anticipates that most licensees will access the list, at no cost, on its website. For those few who want to purchase a paper copy, DOS will likely print a copy, on an order-by-order basis, on existing equipment. The mailing costs will be dependent on the number of copies that are ordered. However, DOS expects that the costs for printing and mailing will be incidental to the costs of preparing the list.

DOS expects that revenues from the sale of the list will be incidental to the costs of preparing, printing and mailing.

c. Costs to State and local governments:

The rule does not otherwise impose any implementation or compliance costs on the 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:

Homeowners who do not want to be solicited will have to file an 'owner's statement' with DOS. The owner's statement will indicate the owner's desire not to be solicited and will set forth the owner's name and the address of the property within the cease and desist zone. DOS will provide homeowners with a standard form, although use of the form is not mandatory. Owner's statements will be provided to community leaders for distribution to their constituents. In addition, owner's statements will be available from DOS on request, as well as being available on its website. DOS will prepare a cease and desist list containing the names and addresses of all of the homeowners who filed an owner's statement. The list will be available, at no cost, on its website. The list will also be sold to the public, including real estate brokers and salespersons. The price will be $10 per copy. Besides any request for cease and desist lists that they submit by mail, real estate brokers and salespersons will not have to complete any paperwork or file any paperwork as a result of this rule.

7. Duplication:

This rule does not duplicate, overlap or conflict with any other state or federal requirement.

8. Alternatives:

DOS did not identify any alternative that would provide relief for homeowners and, at the same time, be less restrictive and less burdensome on the solicitation activities of real estate brokers and salespersons. Consideration was given to the adoption of a non-solicitation order pursuant to RPL section 442-h(2)(a). However, DOS concluded that a cease and desist order could provide homeowners with relief from intense and repeated solicitation without imposing the more restrictive and burdensome regulation of a non-solicitation order, which would prohibit all direct solicitation activities within the non-solicitation zone.

DOS also considered allowing the prior cease and desist order to expire in August 2009, and to not readopt new zones for Queens and Bronx Counties. It was determined, however, that to do so would have resulted in homeowners in the affected areas continuing to be subject to unwanted intense and repeated solicitation to sell their homes.

9. Federal standards:

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

10. Compliance schedule:

The rule will be effective 90 days after adoption to provide time for real estate licensees to become aware of, and comply, with the new regulation.

Regulatory Flexibility Analysis

1. Effect of rule:

This rule would adopt two cease and desist zones to permit homeowners within the defined areas of Queens and Bronx counties to file an Owners' Statement with the Department of State indicating that they do not wish to be solicited to sell or list their property for sale. Real estate licensees would then be prohibited from soliciting a property listing from those residents. The defined cease and desist zones would be Queens County and four communities in the Bronx. This rule will apply to all real estate licensees but would primarily effect the 10,956 real estate licensees in Queens and 2,641 licensees in Bronx who do business in the defined geographic zones. Many of these licensees are small businesses or are associated with small businesses. Real estate brokers and salespersons will remain free, however, to solicit listings from those residents in the defined zone who have not filed Owners' Statements with the Department of State and to participate in regulated transactions within the zone. Insofar as the proposed rule making seeks to adopt cease and desist zones that are similar to zones that were previously in place, but expired on August 1, 2009, 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 (DOS) publishes and makes available a list of residents within cease and desist zones who have notified the Department 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, these licensees 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 compliance costs associated with this rule. DOS 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 DOS and receive a copy of the list by mail for a cost of $10.00.

5. Economic and technological feasibility:

Small businesses will not incur any additional costs or require technical expertise as a result of the implementation of this rule.

6. Minimizing adverse economic impact:

DOS did not identify any alternative that would provide relief for homeowners and, at the same time, be less restrictive and less burdensome on the solicitation activities of real estate brokers and salespersons. Consideration was given to the adoption of a non-solicitation order pursuant to RPL section 442-h(2)(a). However, DOS concluded that a cease and desist order could provide homeowners with relief from intense and repeated solicitation without imposing the more restrictive and burdensome regulation of a non-solicitation order, which would prohibit all direct solicitation activities within the non-solicitation zone.

DOS also considered allowing the prior cease and desist order to expire in August 2009, and to not readopt new zones for Queens and Bronx Counties. It was determined, however, that to do so would have resulted in homeowners in the affected areas continuing to be subject to unwanted intense and repeated solicitation to sell their homes.

7. Small business and local government participation:

On May 28, 2009, May 29, 2009 and June 8, 2009, the Department held public hearings in Queens and the Bronx to consider proposing this rule making. The hearings were publicized in advance and were open to all interested parties. Representatives of local community boards, State and local elected officials, and consumers attended and provided evidence of the need to extend and expand the then-existing cease and desist zone. In addition, DOS 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 defined geographic area within the County of Bronx and all of Queens County.

2. Reporting, recordkeeping and other compliance requirements:

This rule, which applies only to urban Bronx and Queens Counties, 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.