As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2023, which is no later than the 3rd year after the year in which this rule is being adopted.

The Department of State (the “Department”) received over 750 comments following publication of the Notice of Proposed Rulemaking in the State Register. The majority of the comments submitted to the Department were from homeowners or other interested persons that supported the proposal but also requested the proposed zone be expanded to include all the area comprising Community Board 5. Approximately 300 comments were received from licensed real estate brokers or salespeople that self-identified as a REALTOR and that opposed the regulation.

A summary and analysis of issues raised, significant alternatives suggested by the comments, and reasons why any significant alternatives were not incorporated into the rule are described below.

Comments received from licensed professionals and from the New York State Association of Realtors, Inc., (“NYSAR”) (collectively referred to as “NYSAR Comments”) are addressed by the Department as follows.

NYSAR Comment 1: The establishment of this large cease and desist zone will prevent thousands of hard-working REALTORS® in the area from using well-established marketing efforts in order to do business and earn a living during this already difficult economic climate due to the COVID-19 pandemic. We believe the proposal by the Department of State is overly restrictive and unwarranted.

NYSAR Response 1: The Department disagrees that the proposed rule is overly restrictive and will cause increase financial harm. Currently, there are several active cease and desist zones, including one that covers the entire area of the Incorporated Village of Chestnut Ridge, throughout the State that serve as evidence that a zone, in and of itself, will not cause undo financial harm to individuals that attempt to solicit the sale of homes. Additionally, the Department notes the need for this zone may have increased to protect homeowners that may have suffered financial losses due to the COVID-19 pandemic and may be further targeted by opportunistic real estate speculators.

NYSAR Comment 2: Imposing any cease and desist zone only harms legitimate licensed real estate professionals while ineffectively allowing unlicensed individuals to continue their practices unfettered. Cease and desist zones do not provide any remedy for the activities of unlicensed individuals since the Department of State cannot regulate or discipline an unlicensed entity. Therefore, restricting the business practices of an entire industry due to the actions of non-licensed individuals should not be the guiding principal.

NYSAR Response 2: The Department disagrees that cease and desist zones do not address activities by unlicensed persons and refers to NY RPL Section 442-e(8) that expressly authorizes the Department to commence proceedings against unlicensed persons and entities for violations of an active cease and desist zone. Further, this comment overlooks that unwanted solicitations are not only directed toward homeowners from unlicensed individuals but are also a regular practice of some licensed professionals. Accordingly, this comment does not warrant a change to the proposal.

NYSAR Comment 3: The Department of State held a single public hearing on March 5 to weigh its decision to impose a new cease and desist zone. The Department did not publish any information in the State Register or on its website announcing such hearing prior to that date. We believe this lack of transparency prevented an opportunity for all impacted voices to be properly heard.

NYSAR Response 3: The Department disagrees that there was a lack of transparency and/or with the suggestion that any legal process was not followed prior to proposing this rule in the State Register. With respect to the public hearing, the Department notes that NY RPL Section 442-h authorizes both “non-solicitation orders” as well as “cease and desist zones” and the public hearing component is only legally mandated prior to the creation of “non-solicitation orders”. Accordingly, the hearing was held to further support the Department fact finding process but was not legally required and therefore no special notice in the State Register was required under the NY RPL. The Department also notes that notice of the public hearing was reported in local newspapers and the Department specifically communicated with NYSAR prior to the March 5th hearing to confirm that a hearing was being held. Lastly, the Department also notes that the purpose of publishing the rule in the State Register is to collect public comment, and there were approximately 300 comments received from REALTORS, including NYSAR, offering comment to the proposed rule, thereby providing ample opportunity for “all impacted voices to be properly heard.” Therefore, this comment does not warrant modification to the proposed rulemaking.

Additional Public Comments:

Over 450 hundred comments were received in general support of the proposal. The majority of these comments were from homeowners within Community Board 5 and urged the Department to expand the proposed zone to all of the area comprising Community Board 5. Additional comments were received from elected officials also asking the Department to expand the zone. These commenters generally favored the creation of “cease and desist zones” citing, inter alia, the intense and repeated solicitations they or their constituents have suffered but requested that the boundaries of the proposed areas be enlarged to include all the area within Community Board 5. The Department remains concerned about the conditions these homeowners are facing; however, there is insufficient data at this time to suggest the community board, as a whole, is subject to intense and repeated solicitation. Because there is insufficient data to support increasing the boundaries of the proposed zones, the Department finds that it cannot amend the rule to accommodate these comments.