The opinion of the court was delivered by: VICTOR MARRERO, District Judge
In this motion for a preliminary injunction, plaintiffs Christopher
Mastrovincenzo ("Mastrovincenzo") and Kevin Santos ("Santos," and
collectively "Plaintiffs") challenge the application to them of the
licensing requirement contained in the General Vendors Law, New York City
Administrative Code § 20-452 et seq. (the "Ordinance" or
the "General Vendors Law"). Plaintiffs offer for sale in public places
without a license articles of clothing that they individually decorate
with text and images in what they label a graffiti style. Due to a limit
on the number of permits by the Department of Consumer Affairs ("DCA")
pursuant to the Ordinance, Plaintiffs have been unable to obtain a
license to operate as street vendors in New York City. Mastrovincenzo has been arrested twice and Santos
has been told to shut down his display for operating as a vendor without
Plaintiffs have moved for a preliminary injunction to prevent the City
of New York (the "City"), the DCA, the New York City Police Department,
the Department of Parks and Recreation, and the mayor and the respective
department commissioners (collectively, the "Defendants") from enforcing
the licensing requirement against them on the grounds that it violates
the First Amendment to the United States Constitution, a permanent
injunction that the City and DCA previously entered into following other
litigation raising similar issues, and the New York State Constitution.
Because the Court agrees that Plaintiffs are likely to succeed on the
merits of their claims, the Court grants Plaintiffs' motion for a
The General Vendors Law regulates the sale of goods and services, other
than food, in the public spaces of the City of New York. The Ordinance
requires any person who "hawks, peddles, sells, leases or offers to sell
or lease, at retail" any non-food goods or services in a public space in
the City of New York to obtain a general vendor's license from the DCA. Admin. Code §§ 20-452, 453. The Ordinance exempts from the
license requirement any person who vends exclusively "newspapers,
periodicals, books, pamphlets or other similar written material".*fn1
Id. § 20-453. A license costs two hundred dollars and is
valid for one year. See id. § 20-454. The licensee may
apply for renewal of the license each year, and the DCA commissioner must
renew the license provided that the applicant complies with all
administrative requirements, such as payment of taxes and the renewal
fee, and the licensee has not committed any violation which could serve
as the basis for a revocation of the license. See id. §§
20-457, 459. The Ordinance places restrictions on the size and locations
of vendors' displays.*fn2 See id. § 20-465. These
restrictions operate on all vendors, regardless of whether they are
required to possess a license. See id. §§ 20-452(b), 465.
The Ordinance caps the number of general vendor's licenses available
citywide at 853, the number of licenses that were in effect on September
1, 1979. See id. § 20-459(a); New York City Local Law No.
50 (1979). The waiting list for a general vendor's license has approximately 8000 names.
Any person who engages in vending goods or services without a license and
who is not exempt from the license requirement may be exposed to civil
and criminal penalties. See Admin. Code §§ 20-468, 469, 472.
Nonexempt unlicensed vendors may be charged with a misdemeanor that is
punishable by a fine of between $250 and $1000 or imprisonment for up to
three months, or both, and their goods may be seized and subjected to
forfeiture. See id. § 20-472.
The New York City Council indicated that it authorized these penalties
against unlicensed vendors, and enacted the Ordinance, because:
the public health, safety and welfare are
threatened by the unfettered use of city streets
for commercial activity by unlicensed, and
therefore illegal, general vendors. Such illicit
operations have a pernicious effect on both the
tax base and economic viability of the City.
Unlicensed general vendors do not pay taxes, often
sell stolen, defective or counterfeit merchandise
and siphon business from reputable, tax-paying
commercial establishments. The practice of selling
their wares on the most congested streets of the
City impedes the flow of pedestrian traffic,
causing the overflow of traffic and, at worst, it
creates the potential for tragedy.
(New York City Local Law 40/1988 § 1.)
In the mid-1990s, several artists challenged the Ordinance's
requirement that they obtain a license an essentially impossible
task before selling their work in public spaces. See Bery v.
City of New York, 97 F.3d 689 (2d Cir. 1996), cert.
denied, 520 U.S. 1251 (1997). The Second Circuit ruled that the Ordinance's license requirement
unconstitutionally infringed on the artists' First Amendment rights to
sell their work in public places, and granted the artists' motion for a
preliminary injunction against the enforcement of the licensing
requirement as to them. See id. at 698-99. After the Second
Circuit granted the preliminary injunction, the parties in Bery
entered into a Permanent Injunction on Consent (the "Bery
Injunction"). Under the Bery Injunction, the Bery
defendants, including the City and the DCA, are:
permanently enjoined from enforcing Admin. Code
§ 20-453 against any person who hawks,
peddles, sells, leases or offers to sell or lease,
at retail, any paintings, photographs, prints
and/or sculpture, either exclusively or in
conjunction with newspapers, periodicals, books,
pamphlets or other similar written matter, in a
public space [.]
(Permanent Injunction on Consent dated October 21, 1997, Bery v.
City of New York, No. 94 Civ. 4253 (S.D.N.Y. Oct. 30, 1997).)
Plaintiffs in the present case are both trained freelance artists who
employ what they label a "graffiti" style of painting. Mastrovincenzo
received a degree in architecture with a minor in graphic design and
presentation from the Pratt Institute of Technology in 2002. Since then,
he has been commissioned to design and paint storefronts, commercial
signs and business cards, among other projects. He also designs apparel and creates wood carvings and architectural models. He has
been painting for over ten years. Santos studied communications, film and
fine arts at Fordham University. He began painting in graffiti in the
1970s under the instruction of more experienced artists. His work
appeared in a documentary film on graffiti art and has been displayed in
several galleries in New York. After the terrorist attacks on September
11, 2001, Santos co-founded an organization called "Ground Zero Arts,"
which is dedicated to creating memorial artwork addressing the attacks.
Plaintiffs describe graffiti style as "a highly stylized form of
typography" which "involves developing and refining the formation of an
alphabet and the techniques to render it." (Declaration of Christopher
Mastrovincenzo dated January 7, 2004 ("Mastrovincenzo Decl.") at ¶
Both Plaintiffs paint articles of clothing, especially hats, using
paint pens and spray cans, and sell them from sidewalk displays.
Plaintiffs do not work from templates. Instead, each item is unique and
individually produced. Some works contain text, others depict public
figures such as the President or contain logos or designs. Each Plaintiff
offers for sale his own works and will also custom-paint a blank article
of clothing at a customer's request. Neither sells blank, unadorned hats.
Each charges between $10 and $100 per hat. Both set their prices based on the complexity of the design
and effort involved in completing it. They may spend from fifteen minutes
up to an hour to complete one item.
Neither Plaintiff has a general vendor's license. Both applied for
licenses from the DCA in 2002 but were denied because of the City's
freeze on issuing new licenses. Undeterred, Plaintiffs each established
sidewalk displays of their work for sale. Mastrovincenzo has been
arrested twice for acting as a general vendor without a license. The
charges against him were dropped both times, but not before his pieces
were auctioned off following the first arrest and he spent eight hours in
jail after the second arrest. Santos has apparently not been arrested but
was told by City police officers to shut down his display. Santos states
that rather than risk arrest by continuing to sell his works without a
license, he has arranged for licensed vendors to sell his completed works
Through a series of correspondence and discussions between counsel for
Plaintiffs and the DCA during the summer and fall of 2003, Plaintiffs
attempted to obtain permission from the DCA to sell their items in public
spaces without a license. The DCA determined that the hats and other
items were not exempt from the licensing requirements because they did
not communicate a political or religious message and instead were simply merchandise. Plaintiffs then filed this
lawsuit. They claim that the enforcement of the licensing requirement
against them violates the Bery Injunction, the First and
Fourteenth Amendments to the United States Constitution and article 1,
sections 8 and 11 of the New York State Constitution.
The Court may grant a preliminary injunction to stay government action
taken in the public interest pursuant to a statutory scheme when the
moving party establishes that it will suffer irreparable harm absent the
injunction and that it is likely to succeed on the merits of its claim.
See Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d
It is well settled that "the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury."
Elrod v. Burns, 427 U.S. 347, 373 (1976). Consequently, the
parties in the present case direct their energies ...