97 F.3d 689 (2nd Cir. 1996), 1620, Bery v. City of New York

Docket Nº:1620, 1621 and 1782, Dockets 95-9089(L), 95-9131 and 96-7137.
Citation:97 F.3d 689
Party Name:Robert BERY, James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists for Creative Expression on the Sidewalks of New York City, Robert Lederman, Jodi Bogus, Knut Masco, Alexis Portilla and Arthur Robins, Plaintiffs-Appellants, v. CITY OF NEW YORK; Rudolph Giuliani, Mayor, City of New York; William Bratton, Chief, New York City Police Depa
Case Date:October 10, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 689

97 F.3d 689 (2nd Cir. 1996)

Robert BERY, James Albert Harris, Anne Reiss, Ricardo

Antonio Pascual, Artists for Creative Expression on the

Sidewalks of New York City, Robert Lederman, Jodi Bogus,

Knut Masco, Alexis Portilla and Arthur Robins, Plaintiffs-Appellants,

v.

CITY OF NEW YORK; Rudolph Giuliani, Mayor, City of New

York; William Bratton, Chief, New York City Police

Department; Robert Morgenthau, District Attorney-New York

County; Richard A. Brown, District Attorney-Queens County;

William L. Murphy, District Attorney-Richmond County;

Charles H. Hynes, District Attorney-Kings County; Robert F.

Johnson, District Attorney-Bronx County; Alfred C. Cerullo,

III, Commissioner of New York City Department of Consumer

Affairs; New York City Department of Consumer Affairs;

Henry J. Stern, Commissioner, New York City Department of

Parks & Recreation; Marilyn Gelber, Commissioner of the New

York City Department of Environmental Protection of the City

of New York; Environmental Control Board of the City of New

York and Anne J. McCarthy, Executive Director of the

Environmental Control Board of the City of New York, in her

individual and official capacities, Defendants-Appellees.

Nos. 1620, 1621 and 1782, Dockets 95-9089(L), 95-9131 and 96-7137.

United States Court of Appeals, Second Circuit

October 10, 1996

Argued April 26, 1996.

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[Copyrighted Material Omitted]

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Noah A. Kinigstein, New York City, Carol Novack, New York City, for Bery Plaintiffs-Appellants.

Wayne A. Cross, New York City (Randall M. Fox, New York City, Dewey Ballantine, New York City ), for Lederman Plaintiffs-Appellants.

Elizabeth I. Freedman, New York City (Paul A. Crotty, New York City, Corporation Counsel of the City of New York, Leonard Koerner, Robin Binder, Assistant Corporation Counsel), for Defendants-Appellees City of New York.

(Marjorie Heins, Arthur Eisenberg, New York City, for Amici Curiae American Civil Liberties Union, New York Civil Liberties Union, The New York Foundation for the Arts and The New York City Arts Coalition.)

(Gloria C. Phares, Geoffrey L. Thomas, Marc E. Kenny, Paul, Hastings, Janofsky & Walker, New York City, for Amici Curiae Chuck Close, Ronald Feldman, David Hammons, Hans Haacke, Jenny Holzer, Lucy Lippard, Claes Oldenburg, Irving Sandler, Simon Schama, Coosje Van Bruggen, The College Art Association, The Museum of Modern Art and The Whitney Museum of American Art.)

(Shelly S. Friedman, Irving J. Gotbaum, Scott E. Goldsmith, Freedman & Gotbaum, New York City, for Amici Curiae The Fifth Avenue Association, Inc., The Alliance for Downtown New York, Inc., The Grand Central Partnership, Inc., The 34th Street Partnership, Inc., The Madison Avenue Business Improvement District and The Soho Alliance.)

Before VAN GRAAFEILAND and MAHONEY, Circuit Judges, and CARTER, District Judge. 1

ROBERT L. CARTER, District Judge:

Appellants Robert Bery et al. (94 Civ. 4253) and Robert Lederman et al. (94 Civ. 7216), in separate actions below, sought by motions for a preliminary injunction to enjoin enforcement of the General Vendors Law, § 20-452 et seq. of the Administrative Code of the City of New York ("General Vendors Law"), which bars visual artists from exhibiting, selling or offering their work for sale in public places in New York City without first obtaining a general vendors license. Appellees City of New York and various municipal bodies and officials charged with administration and enforcement of the General Vendors Law ("the City") opposed the motions. The district court denied the motions; both sets of appellants appeal.

Background

Appellants are individual artists engaged in painting, photography and sculpture and an artists' advocacy organization, Artists for Creative Expression on the Sidewalks of New York. The individual artists have been arrested, threatened with arrest or harassed by law enforcement officials for attempting to display and sell their creations in public spaces in the City without a general vendors license. Some have had their art work confiscated and damaged. At least one asserts a desire to sell and display her art on the

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sidewalks of New York but has not done so for fear of arrest and destruction of her work.

The Bery appellants commenced their action on June 9, 1994, with the filing of a summons and complaint. The Lederman complaint was filed on October 5, 1994. Both sets of plaintiffs subsequently moved for a temporary restraining order and preliminary injunction. On October 24, 1995, the district court issued its memorandum and order jointly denying the motions for preliminary injunction in both actions, and on October 26, 1995, filed an amended opinion reported at 906 F.Supp. 163. By order of this court dated December 13, 1995, the actions were consolidated on appeal.

The General Vendors Law contains regulatory provisions concerning the sale or offering for sale of non-food goods and services in public spaces in the City of New York. Pursuant to § 20-452(b) of the Administrative Code of the City of New York ("Administrative Code"), a person who "hawks, peddles, sells, leases or offers to sell or lease, at retail, [non-food] goods or services ... in a public space" is a general vendor. Public space is defined as "[a]ll publicly owned property between the property lines on a street as such property lines are shown on the City Record including ... a park, plaza, roadway, shoulder, tree space, sidewalk or parking space between such property lines .... [as well as] publicly owned or leased land, buildings, piers, wharfs, stadiums and terminals." Administrative Code § 20-452(d).

At issue in the present case is § 20-453 of the General Vendors Law, a provision which initially required a license for all general vendors who sought to sell non-food goods or services in public spaces in the City. In 1982, Local Law 33 was enacted amending § 20-453 to exempt from the licensing requirement vendors of newspapers, books and other written matter. L.L. 33/1982. In enacting the amendment, the City Council described the new provision as consonant with the "principles of free speech and freedom of the press." Id. at § 1. In 1979, § 20-459(a) of the Administrative Code was amended by Local Law 50 to limit the total number of licenses in effect at any given time to the number of licenses in effect on September 1, 1979. L.L. 50/1979. The number at that time was 853. However, that limitation rests on a slippery slope, since any veteran who qualifies for a vending license must be issued one. New York State General Business Law § 32 (McKinney 1994). As of the present, 340 such licenses over and above the 853 cut-off number have been issued to veterans, making a total of 1,193 general vendors licenses in effect.

Violators of the licensing requirement are guilty of a misdemeanor punishable by fine and/or imprisonment and civil penalties. See Administrative Code § 20-472(a) and (c)(1). If criminally convicted, the violator is subject to a fine of not less than $250 nor more than $1000 and/or imprisonment of up to three months. Administrative Code § 20-472(a). If found civilly liable, the violator may be fined not less than $250 nor more than $1000, together with a fine of $250 for each day of the unlicensed activity. Administrative Code § 20-472(c)(1). In addition, police officers are authorized to seize the items being sold and the seized items are subject to forfeiture. Administrative Code §§ 20-468 and 20-472(a).

Administrative Code §§ 20-465(a), (b), (e), (f), (k), (m), (n), and (q) restrict the placement, location and size of vending displays and prohibit vending where an authorized city employee has given notice that exigent circumstances require the vendor to move. These regulations are applicable to all general vendors, including vendors of exclusively written matter. Vending, except for written matter, in a park is barred without written authorization from the Department of Parks and Recreation, Administrative Code § 20-465(j); it is also banned from certain commercial zoning districts and in a delineated section of midtown Manhattan. Administrative Code § 20-465(g).

District Court's Determination

The district court denied appellants' motions for preliminary injunctions, dealing with both motions in a joint decision issued in amended form on October 26, 1995. See Bery v. City of New York, 906 F.Supp. 163 (S.D.N.Y.1995) (Cedarbaum, J.). The court

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ruled that the General Vendors Law was a content-neutral municipal ordinance of general application which violated neither the First nor the Fourteenth Amendment, although its incidental effect was to restrict the sale of art on the sidewalks of New York. The limitation of 853 licenses in effect at a given time, a waiting list of between 500 and 5,000 applicants, a waiting time of between 3-5 years to secure a license 2 and the absence of any of the appellants' names on the waiting list did not cause the court to modify this conclusion.

Stating that "[t]he precise nature of First Amendment protection for painting and sculpture with no verbal elements has not been addressed by the federal courts," the district court likened appellants' "fine art" to "applied or decorative art" and found that it rated only limited constitutional protection, in the absence of evidence of government censorship. The court found neither censorship nor animus towards artists as a motivation behind the enactment of the ordinance by the City Council. It thus deemed the ordinance content-neutral and subjected it to a more lenient level of scrutiny than would have been required had it been content-based. Id. at 168.

Applying the standard enunciated in United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968), the court found the provision furthered a public interest...

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