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BERY v. CITY OF NEW YORK

October 24, 1995

ROBERT BERY, JAMES ALBERT HARRIS, ANNE REISS, RICARDO ANTONIO PASCUAL, ARTISTS FOR CREATIVE EXPRESSION ON THE SIDEWALKS OF NEW YORK CITY, Plaintiffs, against CITY OF NEW YORK, RUDOLPH GIULIANI, MAYOR, CITY OF NEW YORK, WILLIAM BRATTON, CHIEF, NEW YORK CITY POLICE DEPARTMENT, ROBERT MORGENTHAU, DISTRICT ATTORNEY-NEW YORK COUNTY, RICHARD A. BROWN, DISTRICT ATTORNEY-QUEENS COUNTY, WILLIAM L. MURPHY, DISTRICT ATTORNEY-RICHMOND COUNTY, CHARLES H. HYNES, DISTRICT ATTORNEY-KINGS COUNTY, ROBERT F. JOHNSON, DISTRICT ATTORNEY-BRONX COUNTY, ALFRED C. CERULLO III, COMMISSIONER OF NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, HENRY J. STERN, COMMISSIONER, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, MARILYN GELBER, COMMISSIONER OF THE ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, Defendants. ROBERT LEDERMAN, JODI BOGUS, KNUT MASCO, ALEXIS PORTILLA, and ARTHUR ROBBINS, Plaintiffs, - against - THE CITY OF NEW YORK, RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, in his individual and official capacities, THE NEW YORK CITY POLICE DEPARTMENT, WILLIAM BRATTON, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, in his individual and official capacities, DEPARTMENT OF CONSUMER AFFAIRS OF THE CITY OF NEW YORK, ALFRED C. CERULLO, III, COMMISSIONER OF DEPARTMENT OF CONSUMER AFFAIRS OF THE CITY OF NEW YORK, in his individual and official capacities, ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, and ANNE J. McCARTHY, EXECUTIVE DIRECTOR OF THE ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, in her individual and official capacities, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Does a content-neutral municipal ordinance of general application violate the First and Fourteenth Amendments because it incidentally restricts the sale of art on the sidewalks of New York City? Plaintiffs in these related cases are artists who sell their original paintings on public sidewalks and an artists' advocacy organization. They move for a preliminary injunction prohibiting the enforcement against them of the New York City, General Vendors Law (Administrative Code of the City of New York § 20-452 et seq.) on the grounds that the application of the ordinance to their activities violates their rights to freedom of expression and equal protection of the laws under the First and Fourteenth Amendments to the Constitution. Plaintiffs do not contend that their paintings are in any respect political, but rather take the position that all works of fine art are forms of expression which fall under the First Amendment's protection of "speech," and that that protection is absolute.

 Art is enormously important in advancing civilization. How the flowering of art is best encouraged in our society is not an issue for the court. These cases do not involve censorship of any kind. There is no suggestion that, in enacting the ordinance, the City Council was motivated by any animus against artists or that the sale of art was a targeted activity. The only question is whether the incidental effect on artists of a general local regulation of all street sales violates the Constitution of the United States. For the reasons discussed below, plaintiffs' motions are denied.

 Background

 The New York City General Vendors Law (the "Ordinance") provides:

 
It shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with the provisions of this subchapter, except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter, but no other items required to be licensed by any other provision of this code, to vend such without obtaining a license therefor.

 Admin. Code of the City of N.Y. § 20-453. The term "general vendor" is defined as:

 
A person who hawks, peddles, sells, leases or offers to sell or lease at retail, goods or services, including newspapers, periodicals, books, pamphlets or other similar written matter in a public space.

 Id. § 20-452(b).

 Amendment I of the Constitution provides: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." *fn1"

 Plaintiffs are artists who sell or desire to sell their original works on public sidewalks. Most of the plaintiffs have been arrested or threatened with arrest, have received summonses, have been fined, and have had their works confiscated for violating the Ordinance. *fn2"

 The City has imposed a limit of 853 on the number of licenses to be issued under the Ordinance. *fn3" See N.Y. City Admin. Code § 20-459; Binder Decl. P 11. There are between 500 and 5,000 applicants on the waiting list to obtain licenses at any given time, and the wait to obtain one is expected to be between three and five years. (Richard Schrader Aff. PP 7, 9 (Ex. D to Lederman Supp. Aff.)) None of the plaintiffs in any of the actions appears to be on the waiting list at the present time. *fn4"

 In addition to their First Amendment attack on the Ordinance, plaintiffs contend that the exemption of sellers of "newspapers, periodicals, books, pamphlets or other similar written matter" from the licensing requirement deprives artists of the equal protection of ...


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