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MASTROVINCENZO v. CITY OF NEW YORK

April 6, 2004.

CHRISTOPHER MASTROVINCENZO (a.k.a. "MASTRO"), and KEVIN SANTOS (a.k.a. "NAC" OR "NAK"), Plaintiffs -against- THE CITY OF NEW YORK; MICHAEL R. BLOOMBERG, Mayor; THE NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS; COMMISSIONER GRETCHEN DYKSTRA; THE NEW YORK CITY POLICE DEPARTMENT; COMMISSIONER RAYMOND W. KELLY; THE DEPARTMENT OF PARKS AND RECREATION OF THE CITY OF NEW YORK; and COMMISSIONER ADRIAN BENEPE, Respondents


The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

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 a license.

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 preliminary injunction.

  I. BACKGROUND

  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 ¶ 6.)

  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 on commission.

  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.

  II. DISCUSSION

 A. STANDARD OF REVIEW

  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 Cir. 1989).

  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 ...


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