Mastrovincenzo v. City of New York

Decision Date05 January 2006
Docket NumberDocket No. 04-2264-CV.
Citation435 F.3d 78
PartiesChristopher MASTROVINCENZO a/k/a Mastro and Kevin Santos a/k/a Nak or Nac, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, Michael R. Bloomberg, Mayor, Gretchen Dykstra, Commissioner of Consumer Affairs, New York City Department of Parks and Recreation, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Deborah A. Brenner (Barry P. Schwartz, of counsel; Michael A. Cardozo, Corporation Counsel of the City of New York, on the brief), New York, NY, for Defendants-Appellants.

David Sapir Lesser (Andrew D. Kaizer, Wilmer Cutler Pickering Hale and Dorr LLP, of counsel; Douglas H. Lasdon, Urban Justice Center, New York, NY, of counsel), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Plaintiffs-Appellees.

Before: CABRANES and SACK, Circuit Judges, and KORMAN,* District Judge.

JOSÉ A. CABRANES, Circuit Judge.

We consider here whether the application of the licensing requirement of the City of New York (the "City") to unlicensed street vendors of clothing painted with grafitti violates either these vendors' rights under the First Amendment or a 1997 permanent injunction entered on consent of the City of New York (the "Bery injunction") by a district court in Bery v. City of New York, No. 94 Civ. 4253(MGC) (S.D.N.Y. Oct. 30, 1997). Because we hold that New York City's licensing requirement is a valid, content-neutral restriction on speech and because we do not classify plaintiffs' merchandise as "paintings" within the meaning of the Bery injunction, we conclude that plaintiffs have not demonstrated a "likelihood of success" on either claim. Accordingly, we vacate the order entered by the United States District Court for the Southern District of New York (Victor Marrero, Judge) granting a preliminary injunction against defendants and remand the cause for further proceedings consistent with this opinion.

New York City's General Vendors Law ("GVL") regulates the sale of goods and services in public spaces for the purpose of preserving public health, safety, and welfare. New York City Administrative Code § 20-453 — a provision of the GVL — aims to reduce congestion of city streets and sidewalks by requiring any person who "hawks, peddles, sells, leases or offers ... at retail" non-food goods or services to obtain a renewable general vendor's license from the Department of Consumer Affairs ("DCA"). N.Y.C. Admin. Code §§ 20-452(b); 20-453. Subject to a small number of exceptions, unlicensed vendors may be fined, imprisoned for up to three months, and/or forced to relinquish their merchandise. Id. § 20-472.

This administrative scheme was successfully challenged in the 1990s by vendors of paintings, photographs, prints, and sculptures, who asserted, inter alia, that New York City's licensing requirement unconstitutionally interfered with their First Amendment right to freedom of speech. Considering the matter at the preliminary injunction stage, we held in Bery v. City of New York, 97 F.3d 689 (2d Cir.1996), that (1) vendors of these traditional forms of art "always communicate some idea or concept" and are therefore presumptively "entitled to full First Amendment protection," id. at 696, and (2) that the City's licensing requirement violated the First Amendment as applied to plaintiffs because it was not narrowly tailored to the objective of reducing urban congestion, id. at 697-98. After this Court's decision in Bery and following the Supreme Court's denial of New York City's petition for a writ of certiorari, City of New York v. Bery, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997), the City declined to proceed to a trial on the merits to resolve whether its fixed-license regime was narrowly tailored in light of the then-prevailing urban congestion rates and the availability of alternative channels for the sale of expressive merchandise. It also apparently declined to more "narrowly tailor" § 20-453 by adjusting the nature of the licensing requirement itself. Instead, the City consented to the Bery injunction and in doing so stipulated that it would no longer enforce § 20-453 against vendors of "`any paintings, photographs, prints and/or sculpture.'" Mastrovincenzo v. City of New York, 313 F.Supp.2d 280, 283 (S.D.N.Y.2004) (quoting the Bery injunction).

We now consider whether either this Court's holding in Bery or the Berry injunction itself prevent the City of New York from enforcing its licensing requirements against plaintiffs, who are sidewalk purveyors of clothing painted with graffiti. In the course of resolving these legal questions, we decline the invitation of plaintiffs (and the District Court) to participate in colloquia on such interesting and lofty matters as the definition of "art," the Platonic form of a "painting," and whether a urinal can be a sculpture, see Decl. of Lydia Yee ¶ 17. Rather, we focus narrowly on the ruling of the District Court which preliminarily enjoined the City of New York from enforcing its licensing requirements against plaintiffs on the basis that such requirements violate both the First Amendment and the Bery injunction.

We hold, principally, that (1) the sale of clothing painted with graffiti is not necessarily expressive and therefore is not automatically entitled to First Amendment protection; (2) the sale of plaintiff's clothing nonetheless has a predominantly expressive purpose and therefore merits First Amendment protection; (3) New York City's licensing requirement is a content-neutral restriction on speech that is narrowly tailored to achieve the objective of reducing urban congestion; and (4) the Bery injunction's reference to "paintings" does not encompass clothing painted with graffiti.

Accordingly, we vacate the District Court's order granting a preliminary injunction against defendants and remand for further proceedings consistent with this opinion.

BACKGROUND
I. New York City's General Vendors Law

New York City's General Vendors Law regulates the sale or offering for sale of non-food goods and services in the public spaces1 of New York City. The GVL defines a "general vendor" as any person who "hawks, peddles, sells, leases or offers to sell or lease, at retail, [non-food] goods or services... in a public space." N.Y.C. Admin. Code § 20-452(b). At issue in this appeal is the provision of the GVL requiring, subject to certain exceptions described below, that "any individual [wishing] to act as a general vendor" must first obtain a general vendor's license from the DCA. Id. § 453.2 A one-year license costs two hundred dollars, id. § 20-454, and a licensee may apply each year for renewal of his license. The DCA must approve a renewal request if the applicant has complied with certain administrative requirements, paid all applicable taxes and fees, and not committed any violation that would support the revocation of his license. Id. §§ 20-456, 457, 459. City regulations specify that no more than 853 general vendor's licenses may be outstanding at any given time. See id. § 20-459(a) (providing that "the maximum number of licenses permitted to be in effect" shall be "[t]he number of licenses in effect ... on the first day of September, nineteen hundred seventy-nine"); Bery, 97 F.3d at 692 (describing the 1979 passage of Local Law 50, which amended the Administrative Code and fixed the permissible number of outstanding licenses at 853). Because the permissible number of licenses has remained unchanged since 1979, and because current license-holders may annually renew their licenses, there is a substantial backlog of individuals seeking licenses.3

Due to a handful of statutory exemptions, the actual number of vendors legally selling non-food items at any given time exceeds 853. For instance, honorably discharged members of the United States armed forces who are veterans of any war or who served in the armed forces overseas are awarded licenses to vend publicly without being constrained by the license limit. See N.Y. Gen. Bus. Law § 32 ("Every honorably discharged member of the armed forces of the United States, who is a resident of this state and a veteran of any war, or who shall have served in the armed forces of the United States overseas ... shall [acquire] the right to hawk, peddle, vend and sell goods, wares or merchandise or solicit trade upon the streets [by obtaining a special veteran's license at no cost] ...."); Bery, 97 F.3d at 692; Mastrovincenzo, 313 F.Supp.2d at 282 n. 1. Likewise, individuals selling "only newspapers, periodicals, books, pamphlets or other similar written matter" are exempted from the licensing requirement. See N.Y.C. Admin. Code § 20-453; Bery, 97 F.3d at 692 (describing the 1982 passage of Local Law 33, which amended the Administrative Code to exempt vendors of written materials from the GVL's licensing requirement). New York City has also agreed, under the terms of the Bery injunction, not to enforce its licensing requirement against individuals selling "paintings, photographs, prints and/or sculpture." See Background, II, post.

All general vendors, including those who are exempt from New York City's licensing requirement, must comply with the GVL's other restrictions concerning the size, location, and placement of vendors' displays. See N.Y.C. Admin. Code § 20-452(b). These regulations specify, inter alia, that vendors may not (1) operate on sidewalks less than twelve feet wide, (2) occupy more than eight linear feet parallel to a curb, (3) display their wares within twenty feet of an entrance to any "place of public assembly," (4) occupy a bus or taxi stand, or (5) obstruct subway access. See id. § 20-465 (specifying detailed restrictions on the time, place and manner in which licensed vendors may peddle goods and services); see also Bery, 97 F.3d at 692 (summarizing the provisions of § 20-465); Mastrovincenzo, 313 F.Supp.2d at 282 n....

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