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ROSSI v. CITY OF NEW YORK

August 30, 2002

DAN ROSSI, PLAINTIFF,
V.
THE CITY OF NEW YORK, RUDY WASHINGTON, AS DEPUTY MAYOR, BARBARA TURKOWITZ, AS COUNSEL TO THE CITY COUNCIL, JAMES MORRIS, INDIVIDUALLY AND AS DIRECTOR OF INSPECTIONS, DEPT. OF HEALTH, AND RUDOLPH GIULIANI, AS MAYOR, DEFENDANTS.



The opinion of the court was delivered by: Alvin K. Hellerstein, District Judge.

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

In this case alleging selective enforcement of New York City's mobile food vending permit laws, defendants move under Rule 56 of the Federal Rules of Civil Procedure for an order granting them summary judgment dismissing plaintiff's complaint. As discussed below, plaintiff has failed to raise a triable issue of fact as to whether the defendants have selectively enforced the vending permit laws against him. Accordingly, defendants' summary judgment motion is granted.

FACTUAL BACKGROUND

1. NYC's Permit Scheme

Food vendors can be found on many street corners in New York City. Hawking everything from ice cream to knishes, these vendors are considered by many to be an important aspect of the City's culture.

Although street vendors purvey simple food items, they are subject to complicated licensing rules established by New York City (the "City"). To start, vendors may sell food from vehicles, pushcarts or stands in public areas of New York*fn1 only after receiving a permit for the vehicle or stand. See N.Y.C. Admin. Code § 17-307. Before 1983, the Department of Health ("DOH") could issue an unlimited number of the required permits, and anyone could hold as many permits as he or she desired. In 1983, however, Local Law 17-83 ("LL17") was passed, limiting the number of full-term mobile food vending permits to 3,000 and the number of temporary permits to 1,000.*fn2 See N.Y.C. Admin. Code §§ 17-307 (b)(2)(a) & (f)(3)(a)(i), respectively.*fn3 In passing LL17, the City Counsel stated that its purpose was to reduce congestion caused by the presence of food vendors.

In 1995, the City Counsel enacted Local Law 15-95 ("LL15"), which limited to one the number of public space mobile food vending permits any one individual person or entity could hold. See N.Y.C. Admin. Code §§ 17-307(b)(2)(c) & (f). The "one person, one permit" rule is strict: pre-LL15 permit holders were not "grandfathered," so multiple renewals are prohibited to the same extent as multiple issuances. Moreover, LL15 prohibits the DOH from issuing permits to (or renewing the permits of) a corporation if that corporation shares an officer or principal with another corporation already possessing a permit, or, likewise, to an individual who is an officer or principal in a corporation already possessing a permit. The admitted purpose of LL15 was "to stop the amassing of large numbers of permits by any one individual, corporation, partnership or other business entity, and the illegal leasing of such permits by some of these multiple permit holders for exorbitant sums of money." See Preamble to LL27 (discussing LL15).

The strict limitations of LL15 have been amended several time since 1997. First, in 1997, the City Council passed Local Law 27-97 ("LL27"), which enabled the DOH to issue multiple temporary permits to any person or entity who (i) held multiple temporary permits when LL15 was passed, (ii) was an exclusive distributor or manufacturer of a food product when LL15 was passed, and (iii) still is such an exclusive distributor or manufacturer. Under LL27, qualified permit holders are eligible for one full-term permit plus the same number of temporary permits they held before LL15 was enacted, up to a maximum of 60 temporary permits. See N.Y.C. Admin. Code § 17-307(f)(3)(a)(ii)(B). The purpose of LL27 was to correct an unintended effect of LL15 on exclusive distributors of seasonal food items, who must have several pushcarts to generate the sales necessary to stay in business.

Finally, in 1999, the City Council passed Local Law 23-99 ("LL23"), which enables the DOH to issue multiple permits to mobile vendors within the City's parks, so long as such vendor has an agreement or contract with the New York City Department of Parks and Recreation ("Parks Department"). See N.Y.C. Admin. Code § 17-320(b). Vending in City parks is therefore excluded from LL15's "one person, one permit" rule. LL23 was enacted for a similar purpose as LL27: to ensure that the parks' largely seasonal vendors could generate enough sales to stay in business.

2. Plaintiff

LL15's "one person, one permit" rule destroyed Rossi's mobile food vending business. While Rossi ran the largest mobile food vending operation in the City prior to 1995, holding 499 full-term public space mobile food vending permits, LL15 limited him to one full-term public space permit.*fn4 He holds his one permit through his corporation, AJM Business Services, Inc.

Rossi, and others like him who operated large mobile food vending businesses before LL15 was enacted, have spent the last seven years trying — largely unsuccessfully — to fight LL15 and related laws, both through political activity and in the courts.*fn5 The current case is the latest legal struggle surrounding New York's mobile vending permit scheme. In this act of the permit drama, Rossi alleges that the city has violated his right to equal protection under the laws by selectively enforcing LL15 against him.*fn6 Fundamentally, Rossi alleges that his outspoken political activities raised the ire of politicians, and that the politicians retaliated by enacting and selectively enforcing a permit scheme for the primary purpose of ruining Rossi and his business.

Rossi began his political activities in 1993, when, allegedly at the request of a group of disabled veterans, Rossi investigated a program set up by the high-profile Fifth Avenue Association and the City to help disabled veterans build food vending businesses. According to Rossi, he exposed this program as being fraudulent, not helpful to veterans and financially lucrative to certain members of the ...


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