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May 2, 1979

Charles EAGLE et al., Plaintiffs,
Edward I. KOCH et al., Defendants

The opinion of the court was delivered by: SWEET

This action is brought by individual holders of peddlers' General Venders Licenses, on behalf of themselves and others similarly situated, seeking redress for alleged violations of their constitutional rights.

The defendants, who are being sued in their representative capacities, are Edward I. Koch, Mayor of the City of New York, Carol Bellamy, President of the City Council, Bruce Ratner, Commissioner of the Department of Consumer Affairs, and Robert J. McGuire, Police Commissioner. Jurisdiction is grounded upon 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

 To the extent here relevant, the complaint alleges that the plaintiffs are being deprived of their property without due process of law. *fn1" Specifically, they assert that their goods are, in effect, being confiscated by the defendants and their agents without a hearing at which the propriety of the taking is adjudicated. The taking of the peddlers' goods is authorized by Local Law No. 77, specifically sections B32-503.0(k) *fn2" and B32-506.0(b) *fn3" and certain Interim Orders issued thereunder. The relevant Interim Orders provide Inter alia, as follows:

 Interim Order No. 46, paragraph 7:

If a licensed vendor refuses to move his goods, vehicle, pushcart or stand when directed by a police officer due to exigent circumstances (traffic congestion pedestrian or vehicular, accident, emergency situation, parade, demonstration, or similar event at or near such location) the officer concerned may remove the goods, vehicle, etc., to the Station House, in addition to issuing a summons for failure to move as required by Section D22-16.0 Subd. b (Food Vendors) or Section B32-506.0 Subd. b (General Vendors). However, food (as defined in Appendix "A") is not to be the subject of such removal. The owner or other person entitled to such property may request release of this property at the location where the property is being safeguarded. Property Clerk Invoice prepared for REMOVED property will be marked "REMOVED SAFEGUARD."

 Interim Order No. 46-3:


 PURPOSE To collect and forward fees received for vehicles, carts, stands or goods of licensed peddlers removed under EXIGENT CIRCUMSTANCES and stored in police department facilities.

 PROCEDURE When the owner or person lawfully entitled to possession appears at a department facility to claim peddler's vehicle, cart, stand or goods:


The foregoing Interim Order is promulgated in order to implement the provisions of the above cited newly enacted sections of the Administrative Code which provide that the owner or other person lawfully entitled to the possession of a licensed vendor's (peddler's) equipment and/or wares which were seized and removed under "exigent circumstances" may be charged with reasonable costs for such removal and storage payable prior to their release.

 Plaintiffs challenge the constitutionality of the relevant sections of Local Law No. 77 and the interim orders promulgated thereunder, as written and as applied to them.

 On May 1, 1978 this case was commenced by an Order to Show Cause seeking a preliminary injunction restraining certain acts of the defendants. On May 5, 1978, the return date of the Order, the parties entered into a stipulation which, Inter alia, established guidelines under which police officers could remove the goods and peddler cart of a licensed general vendor under exigent circumstances pursuant to the relevant sections of the New York City Administrative Code heretofore set forth. This stipulation, which was "so ordered" by the Honorable John M. Cannella of this court, has been continued in effect pending this decision.

 On August 1, 1978, the plaintiffs moved to hold certain police officers in contempt for alleged violations of the aforementioned "so ordered" stipulation. After an evidentiary hearing on the motion this court determined that there had been several violations of the "so ordered" stipulation by certain officers in that goods were being confiscated without the requisite warning provided for in the stipulation and the relevant sections of the Administrative Code. Thereupon an order was entered directing the City of New York to return the removal fees paid by the peddlers in question. On February 5, 6 and 7, 1979, the action was tried to this court. Subsequent to the trial plaintiffs moved for class action certification, which defendants ...

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