The opinion of the court was delivered by: DEARIE
Plaintiffs are four African-American Muslims who were arrested and issued summonses for unlawful vending on several occasions in 1994 and 1995. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 for violation of their rights under the First, Fourth and Fourteenth Amendments, and pursuant to New York Civil Rights Law §§ 40-c and 44-a for racial and religious discrimination. Plaintiffs seek a declaration that the New York City vending law ("General Vendors Law") as applied to them is unconstitutional. The complaint also alleges false arrest and imprisonment claims. Defendants have moved for partial summary judgment to dismiss so much of the first, fourth and sixth causes of action that allege violation of plaintiffs' First Amendment rights to free exercise of religion and free speech, and that allege religious discrimination under the New York Civil Rights Law.
Plaintiffs stationed themselves in the Fulton Mall area in downtown Brooklyn, where they "propagated information concerning their religion, and solicited donations on behalf of their faith" in exchange for books, pamphlets, perfume oils, incense and bracelets. Compl. P 13; see also Al-Amin Depo. at 41-45; Sayeed Depo. at 19-21, 49; Smalls Depo. at 13-14; Jenkins Hrg. Tr. at 5. Plaintiffs (except for Jenkins) had engaged in these activities on the Fulton Mall full-time, for many years. Al-Amin Depo. at 43, 45, 54; Sayeed Depo. at 20, 31; Smalls Depo. at 12-13, 16-17; Jenkins Hrg. Tr. at 8. As plaintiff John Smalls testified,
I have books, I have religious books, I have religious oils, religious incense and religious books, and I have fliers and pamphlets, and I speak to people and I invite them to join Islam, and some people join, and some people buy religious articles and give me a donation.
Smalls Depo. at 13-14. According to plaintiffs, the object of their activities was to propagate Islam. Sayeed Depo. at 20-21. Plaintiffs testified that they sometimes donated some or all of their earnings from the sales to mosques. Al-Amin Depo. at 52-53; Sayeed Depo. at 26, 33-34; Smalls Depo. at 16.
Plaintiffs were issued New York City Environmental Control Board summonses for violations of the General Vendors Law. Compl. P 41. It is important to note that plaintiffs are not prohibited from engaging in a broad spectrum of missionary activity. Defendants agree that plaintiffs may sell and distribute books and pamphlets, may disseminate their religious beliefs, and may solicit funds for religious purposes in the Fulton Mall area, all without the need for a general vendor's license.
A. The General Vendors Law
The General Vendors Law, set forth in New York Administrative Code ("Admin. Code") §§ 20-452 et seq., regulates the retail sale of non-food goods and services in public streets, parks and other public spaces in New York City. Pursuant to this regulatory scheme, a "general vendor" is defined as "[a] person who hawks, peddles, sells, leases or offers to sell or lease, at retail, [non-food] goods and services . . . in a public space." Admin. Code § 20-452(b).
A general vendor of non-food goods and services, except for exclusively written material, must obtain a general vendor's license from the Department of Consumer Affairs. Id. § 20-453. The total number of licenses in effect at any one time in New York City is limited to 853.
Id. § 20-459(a). There is a long waiting-list of individuals seeking to obtain a general vendor's license. Waters Decl. at 6; Bery v. City of New York, 97 F.3d 689, 697 & n.7 (2d Cir. 1996) ("a 500 to 5000 person waiting list makes [applicants'] prospects of securing a license apparently nonexistent, a fact conceded at oral argument"), cert. denied, 138 L. Ed. 2d 174, 117 S. Ct. 2408 (1997).
The General Vendors Law also prohibits general vending even with a license, except vending of exclusively written matter, in certain zoning districts, including zones C4 and C5. Admin. Code §§ 20-465(g), 473. The New York City Council has made findings that
the presence of general vendors in certain parts of the city has caused serious congestion on the streets and sidewalks, preventing the regular flow of pedestrian and vehicular traffic, forcing pedestrians off the sidewalk, and thereby creating the increased potential for automobile and vehicular accidents and posing an extremely serious ...