Section 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, national origin, age, sex, sexual orientation, disability, gender identity, military status, familial [statues] 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.[)]

(2)

(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.

(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.

(3)

(i) No licensed real estate broker or salesperson shall solicit the sale, lease or the listing for sale or lease of residential property from an 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.

(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:

Within the County of Bronx as follows:

[All that] The sections of the area of land in the County of Bronx, City of New York, within the neighborhood commonly referred to as Country Club, [otherwise known as Community Districts 10, 11 and 12] and more specifically bounded by 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]

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)

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.]

(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.

(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

(v) The cost of each list [complied] compiled 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

(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.

(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 subparagraph (iii) of this paragraph.

(4)

(i) For the purposes of this 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:

([a] a) to be delivered or presented to the owner or anyone else at the owner's home address;

([b] b) to be left for the owner or anyone else at the owner's home address; or

([c] c) to be placed on any vehicle, structure or object located on the owner's premises.

(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 subdivision; or radio and television advertisements.

(5) For the purposes of this 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.

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Non-substantive changes were made in 175.17(a)(3)(ii) in that the respective expiration dates for the proposed zones in Bronx and Queens Counties were changed from September 1, 2022 to October 1, 2022 to accommodate the publishing scheduling of the State Register.

Additional non-substantive changes were made in 175.17(a)(4)(i), by italicizing the “(a)”, “(b)” & “(c)” to conform the text to regulatory numbering protocol and avoid confusion.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is no later than the 3rd year after the year in which this rule is being adopted.

The Department has received over 200 comments relating to this proposal. The majority of these comments were received from current license holders that opposed the regulation, however, for the reasons to follow, the Department finds such comments and general objections do not justify changes to the rulemaking.

The majority of the comments from current license holders consist of identical boilerplate concerns raising two general categories of objections: 1) that a cease and desist zones would harm “legitimate licensed real estate professionals while ineffectively allowing unlicensed actors to continue their business practices unfettered”; and 2) that the information gathered by the Department prior to adoption of the rule does not satisfy the “intense and repeated” standard required for the establishment of a cease and desist zone. The Department will address each category in turn.

With regard to the first category of comments suggesting that the rule will harm licensees while benefiting “unlicensed actors”, the Department notes that the commenters have not provided any facts to support the concerns presented. In addition, with regard to the feared harm to licensees, the Department notes that these comments contradict some of the testimony provided by other licensees. For example, during the public hearings, several brokers indicated that they would voluntarily stop sending solicitations to owners that contacted them, supporting the Department’s position, which is based on its experience with prior cease and desist zones, that such zones have not impeded real estate professionals from operating successfully within such areas. Additionally, with regard to concerns that “unlicensed actors” will benefit from the establishment of such zones, the Department notes that the rule applies equally to both unlicensed businesses and persons that are regularly engaged in the business of buying or selling property. Accordingly, the Department finds that these comments are unsupported and do not warrant amendments to the rule.

The second main category of objections was stated by many commenters as follows: the “standard of ‘intense and repeated solicitation’ has not been met by the extremely limited sample of documents and anecdotal testimony provided during the abovementioned public hearings. Additionally, we believe conditions of illegal housing discrimination, such as red lining or block busting must also exist in order to impose such cease and desist zones. These concerns were not raised at such hearings.” In brief, the Department finds that these comments are not well-founded and do not support modification of the rule. First, these comments do not take into account the additional materials collected and received by the Department beyond what was offered at the public hearings. Moreover, after thorough and careful consideration of all of the data and other information gathered, including materials offered outside of the public hearings, the Department does believe that there is sufficient support for its conclusion that there has been “intense and repeated solicitation” within the proposed zones. Finally, the Department notes that the remaining comments - concerning the appropriate legal standard required for the establishment of cease and desist zones - were previously addressed in Anderson v. Treadwell, 294 F.3d 453 (2d Cir. 2002) and are misguided.

Additional comments were received from several homeowners and local civic associations representing areas not included within the proposal. These commenters generally favored the creation of “cease and desist zones” citing, inter alia, the intense and repeated solicitations they have suffered, but requested that the boundaries of the proposed areas be enlarged to include their communities. The Department is concerned about the conditions these homeowners are facing; however, there is insufficient data at this time to suggest these specific communities, as a whole, are 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.