[HISTORY: Adopted by the Mayor and Council of the Borough of Bradley Beach 5-25-2021 by Ord. No. 2021-17. Amendments noted where applicable.]
A. 
During such times when the limits imposed on third-party take-out and delivery service fees imposed by state law (S. 2437) are not in effect and the State of Emergency caused by COVID-19 remains in effect, it shall be unlawful for any third-party food take-out and delivery service application or internet website to charge a service fee to a restaurant for take-out or delivery service greater than:
(1) 
Fifteen percent of the cost of the individual order; or
(2) 
Five percent of the cost of the individual order when the order is delivered by an employee of the restaurant or an independent contractor with whom the restaurant has contracted directly.
B. 
It shall be unlawful to reduce the compensation rates or gratuities paid to a delivery service driver because of the limits on fees imposed by this chapter.
C. 
Notwithstanding any existing agreement in effect prior to the effective date of this chapter, it shall be unlawful for a third-party delivery service application or internet website to charge a restaurant a fee per order greater than the fee allowed by this chapter for services, including, but not limited to, fees for promotions, advertising, marketing, or delivery. Any fees in a preexisting agreement greater than those permitted by this chapter shall be void and unenforceable against a restaurant.
D. 
The provisions of this section shall not be construed to limit the right of any restaurant to choose by agreement to pay an additional 5% of the cost of the individual order to access additional advertising or other services offered by any third-party food takeout and delivery service application or internet website. However, any restaurant that chooses to pay a service fee that is greater than the fee set forth in the provisions of this chapter shall be required to affirmatively elect to pay that fee regardless of any contract that is in effect on the effective date of this chapter.
E. 
For the purpose of Subsection D above, the parties to an agreement to pay for additional services may define the term "cost of an order" to include tips, service charges and any additional fees associated with an individual order.
F. 
This chapter shall not apply to restaurants with 10 or more locations in the state.
G. 
Penalties. Each violation of this section shall be punishable by a fine of up to $2,000 and/or imprisonment for a period of up to 90 days and/or a period of community service not exceeding 90 days. Each day a violation shall continue shall constitute a separate offense.
H. 
The Office of Emergency Management shall enforce this chapter.