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Lederman v. New York City Department of Parks and Recreation

July 16, 2010

ROBERT LEDERMAN AND JACK NESBITT, PLAINTIFFS,
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, ADRIAN BENEPE, CITY OF NEW YORK, AND MICHAEL BLOOMBERG, DEFENDANTS.
DIANE I. DUA, ET AL., PLAINTIFFS,
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, ADRIAN BENEPE, CITY OF NEW YORK, AND MICHAEL BLOOMBERG, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

MEMORANDUM & ORDER

In these two related cases, Plaintiffs are artists who make their living by selling their works on sidewalks and in public parks in New York City. They challenge the constitutionality of recently enacted revisions to the Rules of the City of New York governing where sellers of art and books - also known as "expressive-matter vendors" - may sell their wares. See 56 R.C.N.Y. §§ 1-02, 1-05 (the "Revisions"). Specifically, the Revisions state that in Battery Park, Union Square Park, the High Line, and certain parts of Central Park, expressive-matter vendors who wish to set up a display stand to sell their wares may do so only in a limited number of designated spots, which are allocated on a first-come, first-served basis. Plaintiffs contend that these revisions violate their First and Fourteenth Amendment rights.

Before the Court are Plaintiffs' motions for a preliminary injunction preventing these revisions from taking effect on July 19, 2010. Because the revisions appear to be reasonable, content-neutral time, place, and manner restrictions that are narrowly tailored to advance a significant government interest, while leaving open ample alternative channels for expressive activity, and because Plaintiffs' Equal Protection claims do not trigger heightened scrutiny, the Court concludes that Plaintiffs are not likely to succeed on the merits of their underlying claims for declaratory and injunctive relief. Accordingly, the motions for a preliminary injunction are denied.

I. BACKGROUND

A. Previous Attempts To Regulate Expressive-Matter Vendors

This case is the most recent episode in a long line of legal disputes between art vendors and the City. In 1994, Plaintiff Robert Lederman and other artists brought a constitutional challenge to provisions of the City's General Vendors Law. See Bery v. City of N.Y., 97 F.3d 689 (2d Cir. 1996). Under the law as it stood at the time, all vendors (other than book sellers) were required to obtain a general vendors licence before selling their wares in any public space. Id. at 692. Only 853 general vendors licenses were in existence, and licenses only became available when current license holders failed to renew.*fn1 Id. The waiting list to acquire a license had between 500 and 5,000 names on it, and, with the exception of one year in which 300 new licenses had been issued as the result of a bookkeeping error, no new licenses had been issued in the previous fifteen years. Id. at 693, 697 n.7. Largely as a result of these limitations, there were no known examples of artists being licensed to sell their works on City property. Id. at 697 n.7. On this basis, the Second Circuit described the ordinance as "a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York." Id. at 697. Having held that selling art in public spaces is expressive activity protected by the First Amendment, the Court had no trouble concluding that the law was "too sweeping to pass constitutional muster." Id. at 696-97. Because it operated as a complete ban on protected activity anywhere on City property, it was not narrowly tailored to advance a significant government interest, nor did it allow ample alternative channels for expressive activity. See id. at 697 ("The City may enforce narrowly designed restrictions as to where appellants may exhibit their works in order to keep the sidewalks free of congestion and to ensure free and safe public passage on the streets, but it cannot bar an entire category of expression to accomplish this accepted objective when more narrowly drawn regulations will suffice."); id. at 698 ("The sidewalks of the City must be available for appellants to reach their public audience. The City has thus failed to meet the requirement of demonstrating alternative channels for appellants' expression."). The Court also held that the "requirement that appellants' art cannot be sold or distributed in public areas without a general vendors license, while written material may be sold and distributed without a license," when combined with the First Amendment infringement, resulted in an Equal Protection violation. Id. at 699.

In striking down the regulations, however, the Bery Court noted that "there exist less intrusive means" for accomplishing the City's objectives: "one amicus [the ACLU] suggests a rotating first-come, first-served lottery system for assigning a limited number of licenses. The system employed by San Francisco might provide a model: certain areas are set aside for art sales and a weekly lottery assigns spots." Id. at 698 n.8 (citation omitted). Although the Court did not expressly bless such alternative systems as permissible, that was the clear import of its message.

Perhaps on this basis, the City amended its regulatory scheme to provide for "seventy-five site-specific permits for art vendors in Manhattan parks, including twenty-four sites in front of" the Metropolitan Museum of Art, a coveted spot for art vendors. See Lederman v. Giuiani, No. 98 Civ. 2024 (LMM), 1998 WL 186753, at *1 (S.D.N.Y. Apr. 17, 1998) ("Lederman I"). Each permit gave "its holder a legal right to sell his work in a specific area for one month" at a cost of twenty-five dollars. Id. In the event that more than "seventy-five people appl[ied] for the seventy-five sites available in Manhattan, or if there [were] more applications than spaces available for any particular location, the Parks Department would hold a random-draw lottery for each month." Id. at 2. Artists who were "willing to accept permits for other sites" could "rank their choices of location in order of preference. If the artist's first choice [wa]s unavailable, the artist would be assigned to his second choice, if that site was available." Id. If an artist could not "obtain a permit to sell his work in Manhattan, he [could] obtain a permit to sell his work in Prospect Park in Brooklyn, where there [was] no limit on the number of art vending permits." Id.

The plaintiffs in Lederman I chose not to obtain permits and were consequently ticketed, and their artworks were seized. Id. They then sought to preliminarily enjoin further enforcement on the grounds that the regulations violated the First and Fourteenth Amendments. See id. at *3-4. The Honorable Lawrence M. McKenna, District Judge, denied the motions for a preliminary injunction. Id. at *6. In doing so, he held, first, that the regulations were content-neutral time, place, and manner restrictions. Id. at *3. He next held that "[t]he City undoubtedly has a significant interest in preserving and promoting the scenic beauty of its parks, providing sufficient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks." Id. He further held that the "regulations [were] narrowly tailored to serve the government's interest in preserving the essential character of the City's parks and keeping the parks and perimeter sidewalks safe and free of congestion." Id. He found that the number of allotted sites appeared to be reasonable and that "the lottery system . . . ensure[d] that the permits [would] be distributed fairly and that new artists, each month, [would] have an opportunity to sell their work in front of the Met." Id at *4. Finally, he concluded that the regulations left "open alternative avenues for communication" because "[a]n unlimited number of permits are available for Prospect Park in Brooklyn," and because "[a]ny artist vendor who is foreclosed from obtaining a permit or chooses not to obtain one may, under Bery, sell his artwork on any other public sidewalk throughout the City not within the jurisdiction of the Parks Department, subject only to narrow restrictions." Id.

After discovery concluded, the parties filed motions for summary judgment. At that point, Judge McKenna concluded - without disturbing his preliminary analysis of the regulations' constitutionality - that the regulations should be interpreted, as a matter of state administrative law, not to apply to expressive-matter vendors. See Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 2001 WL 902591, at *6 (S.D.N.Y. Aug. 7, 2001), aff'd 2003 WL 21664300 (2d Cir. July 15, 2003).*fn2

B. The Revisions

Over the next eight and a half years, expressive-art vendors were generally free to sell their wares on sidewalks and in parks throughout the City, subject only to limited regulations that, for example, prohibit vendors from setting up displays on top of subway grates or leaning anything against trees or park benches. See 56 R.C.N.Y. § 1-05(b)(4). Over the course of this period, the number of expressive-matter vendors in Central Park, Battery Park, and Union Square Park "more than tripled," according to Jack Linn, an Assistant Commissioner and Senior Counselor of the Parks Department. (Linn Decl. ¶ 6.)*fn3 "This dramatic increase in the number of vendors . . . resulted in congested conditions in and around these parks, especially for those seeking to enter a park, as well [as] crowding out other park users." (Id.)

On March 24, 2010, the Parks Department published proposed changes to the Rules of the City of New York. On April 23, 2010, the Parks Department held a public hearing to discuss the proposed changes. (Id. ¶ 4 n.4.) Based on the comments at the hearing and more than 200 written submissions, the Department revised the rules and published the new version on June 18, 2010. (Id.) Under this final version of the Revisions, which will take effect on July 19, 2010,

[p]ersons may vend expressive matter, as defined in section 1-02 of this title,*fn4 on property under jurisdiction of the Department without a permit, but must comply with all applicable provisions of these rules. However, in the specific locations enumerated in paragraph (3) expressive matter vendors may only vend expressive matter at the specifically designated spots identified by the Commissioner in the accompanying maps and as marked by a Department decal, medallion, or other form of marking, on the specific location of the approved vending spot, unless they are only vending expressive matter without using a cart, display stand or other device and without occupying a specific location for longer than necessary to conduct a transaction and are otherwise in compliance with Department rules.

These spots shall be allocated upon a first come, first serve basis except as otherwise provided by law and any expressive matter vendor may only vend expressive matter centered directly behind the Department decal, medallion, or other form of marking and if multiple expressive matter vendors attempt to vend expressive matter at any one Department decal, medallion, or other form of marking and if it cannot be otherwise determined which expressive matter vendor arrived first, then all such expressive matter vendors at such spot will be in violation of this section and may be directed to leave the area of that Department decal, medallion or other form of marking immediately. . . .

Expressive matter vendors can only occupy the designated spots for the purpose of vending expressive matter and only during posted times, which will be consistent with the hours of operation for the park where such designated spots are located in or adjacent to.

56 R.C.N.Y. § 1-05(b)(2) (paragraph breaks added). Section 1-5(b)(3) further provides that

[e]xpressive matter vendors may not vend in the following general areas unless they vend at the specifically designated spots for such vending on the accompanying maps and in compliance with all other applicable Department rules:

(i) Central Park at the following locations: (A) the perimeter of the park between East 85th Street and East 60th Street, including all sidewalks and plazas[,] (B) the perimeter of the park between West 86th Street and West 60th Street, including all sidewalks and plazas[,] (C) all of Central Park South, including all sidewalks and plazas[,] (D) Wien Walk and Wallach Walk, (E) pedestrian pathways parallel to East Drive ...


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