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Letter in lieu of advisory opinion 1988-4
This is in response to your letter dated ________, wherein you request guidance regarding the difference between a concession agreement, as that term is used in the New York City Lobbying Law (Administrative Code § 3-211 et seq.), and a lease. The following outlines that distinction and should be used as a general guideline.
As you are aware, the term "concession agreement" appears in section 3-211 of the Administrative Code. That section states in relevant part:
(c)(1) The term "lobbying" or "lobbying activities" shall mean any attempt to influence:
(vi) any determination by an agency in connection with a proposed concession agreement….
There is no definition of "concession agreement" in the Lobbying Law. In general, a concession agreement is a type of license involving the performance of particular acts using real or personal property owned or controlled by the City, whether or not such acts are for profit. Concessions, as opposed to leases, constitute revocable rights, not alienating any property interest. Senro Concessions, Inc. v. Shelton Properties, Inc., 10 N.Y.2d 320 (1961) (agreement permitting operation of certain exclusive privileges, such as checkroom and toilet facilities, constituted concession rather than lease). See also Lordi v. County of Nassau, 20 A.D.2d 658, 659 (2nd Dept. 1964), aff'd 14 N.Y.2d 699 (1964). Whether an agreement is a true concession rather than a lease should not be judged solely by the name it is given, but rather by the powers retained by the owner and the interest conveyed to the "concessionaire" or "lessee."(Miller v. City of New York, 15 N.Y.2d 34, 37 (1964) ("license" to construct and to operate for twenty years facilities in public park constituted a lease). In addition, the Office of the New York City Corporation Counsel discussed concession agreements in Opinion No. 3-83, dated May 3, 1983, and distinguished between a lease of public property, which involves a disposition of interest in property, and a concession, which involves a license to perform particular acts on City property in the discretion of the appropriate Commissioner.
Whether a specific agreement constitutes a "concession agreement" must be determined on a case by case basis.
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