Bery v. City of New York, 94 Civ. 4253 (MGC)

• Decision Date: 26 October 1995
• Docket Number: 94 Civ. 7216 (MGC).,No. 94 Civ. 4253 (MGC),94 Civ. 4253 (MGC)
• Citation: 906 F. Supp. 163
• Parties: Robert BERY, James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists for Creative Expression on the Sidewalks of New York City, Plaintiffs, 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 and Recreation, New York City Department of Parks and Recreation, Marilyn Gelber, Commissioner of the Environmental Control Board of the City of New York, Environmental Control Board of the City of New York, Defendants. Robert LEDERMAN, Jodi Bogus, Knut Masco, Alexis Portilla, and Arthur Robbins, Plaintiffs, v. The CITY OF NEW YORK, Rudolph Giuliani, Mayor of the City of New York, in his individual and official capacities, The New York City Police Department, William Bratton, Commissioner of the New York City Police Department, in his individual and official capacities, Department of Consumer Affairs of the City of New York, Alfred C. Cerullo, III, Commissioner of Department of Consumer Affairs of the City of New York, in his individual and official capacities, 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.
• Court: U.S. District Court — Southern District of New York

906 F. Supp. 163

Robert BERY, James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists for Creative Expression on the Sidewalks of New York City, Plaintiffs, 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 and Recreation, New York City Department of Parks and Recreation, Marilyn Gelber, Commissioner of the Environmental Control Board of the City of New York, Environmental Control Board of the City of New York, Defendants.

Robert LEDERMAN, Jodi Bogus, Knut Masco, Alexis Portilla, and Arthur Robbins, Plaintiffs, v. The CITY OF NEW YORK, Rudolph Giuliani, Mayor of the City of New York, in his individual and official capacities, The New York City Police Department, William Bratton, Commissioner of the New York City Police Department, in his individual and official capacities, Department of Consumer Affairs of the City of New York, Alfred C. Cerullo, III, Commissioner of Department of Consumer Affairs of the City of New York, in his individual and official capacities, 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.

No. 94 Civ. 4253 (MGC), 94 Civ. 7216 (MGC).

United States District Court, S.D. New York.

October 26, 1995.

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Noah A. Kinigstein, Carol Novack, New York City, for plaintiffs Robert Bery, et al.

Dewey Ballantine by Wayne A. Cross, Randall Fox, New York City (Volunteer Lawyers for the Arts, of Counsel), for plaintiffs Robert Lederman, et al.

Paul A. Crotty by Robin Binder, Gabriel Taussig, Corporation Counsel of City of New York, New York City, for defendants.

CEDARBAUM, District Judge.

Does a content-neutral municipal ordinance of general application violate the First and Fourteenth Amendments because it incidentally restricts the sale of art on the sidewalks of New York City? Plaintiffs in these related cases are artists who sell their original paintings on public sidewalks and an artists' advocacy organization. They move for a preliminary injunction prohibiting the enforcement against them of the New York City General Vendors Law (Administrative Code of the City of New York § 20-452 et seq.) on the grounds that the application of the ordinance to their activities violates their rights to freedom of expression and equal protection of the laws under the First and Fourteenth Amendments to the Constitution. Plaintiffs do not contend that their paintings are in any respect political, but rather take the position that all works of fine art are forms of expression which fall under the First Amendment's protection of "speech," and that that protection is absolute.

Art is enormously important in advancing civilization. How the flowering of art is best encouraged in our society is not an issue for the court. These cases do not involve censorship of any kind. There is no suggestion that, in enacting the ordinance, the City Council was motivated by any animus against artists or that the sale of art was a targeted activity. The only question is whether the incidental effect on artists of a general local regulation of all street sales violates the Constitution of the United States. For the reasons discussed below, plaintiffs' motions are denied.

Background

The New York City General Vendors Law (the "Ordinance") provides:

It shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with the provisions of this subchapter, except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter, but no other items required to be licensed by any other provision of this code, to vend such without obtaining a license therefor.

Admin.Code of the City of N.Y. § 20-453. The term "general vendor" is defined as:

A person who hawks, peddles, sells, leases or offers to sell or lease at retail, goods or services, including newspapers, periodicals, books, pamphlets or other similar written matter in a public space.

Id. § 20-452(b).

Amendment I of the Constitution provides: "Congress shall make no law ... abridging the freedom of speech, or of the press...."¹

Plaintiffs are artists who sell or desire to sell their original works on public sidewalks. Most of the plaintiffs have been arrested or threatened with arrest, have received summonses, have been fined, and have had their works confiscated for violating the Ordinance.²

The City has imposed a limit of 853 on the number of licenses to be issued under the Ordinance.³ See N.Y.City Admin.Code § 20-459; Binder Decl. ¶ 11. There are between 500 and 5,000 applicants on the waiting list to obtain licenses at any given time, and the wait to obtain one is expected to be between three and five years. (Richard Schrader Aff. ¶¶ 7, 9 (Ex. D to Lederman Supp.Aff.)) None of the plaintiffs in any of the actions appears to be on the waiting list at the present time.⁴

In addition to their First Amendment attack on the Ordinance, plaintiffs contend that the exemption of sellers of "newspapers, periodicals, books, pamphlets or other similar written matter" from the licensing requirement deprives artists of the equal protection of the laws and thus violates that clause of the Fourteenth Amendment.

Standard for Preliminary Injunction

To obtain a preliminary injunction, plaintiffs must show that they are "likely to suffer possible irreparable injury" and "either (1) a likelihood of success on the merits of their case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990) (citation and internal quotation marks omitted). In these cases, the two prongs of the threshold showing required for injunctive relief merge into one. Since violation of constitutional rights is the irreparable injury asserted, see Mitchell v. Cuomo, 748 F.2d 804 (2d Cir.1984), in order to show irreparable injury, plaintiffs must show likelihood of success on the merits.

Does the Ordinance Violate Plaintiffs' First Amendment Rights?

There are few cases which discuss whether the First Amendment prohibits application of a general vending licensing scheme to the sale of works of fine art on public property. New York state courts have decided several cases under the Ordinance. The New York City Criminal Court dismissed a charge of violating the Ordinance against Robert Bery, one of the plaintiffs in these actions. See People v. Bery, N.Y.L.J., May 20, 1994, at 22. The court concluded that "the licensing requirement is inapplicable to this case based on the First Amendment rights of the defendant. Not only did the defendant's work express a clear political viewpoint but, in addition, some of his work included the written word...." Id.⁵ In another case, the New York City Criminal Court held that the Ordinance did not violate the equal protection rights of an artist who sold his own paintings of floral pastels in the style of René Magritte on the city sidewalks. See People v. Milbry, 140 Misc.2d 476, 530 N.Y.S.2d 928 (N.Y.City Crim.Ct.1988). In Milbry, the court held that under the test set forth in United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968), there is no First Amendment bar to the inclusion of artists in a general licensing requirement for street vendors, and also held that the exemption for sellers of written matter did not deprive sellers of paintings of equal protection of the laws under the Fourteenth Amendment. Milbry, 530 N.Y.S.2d at 930-31.

One other state court has dealt with the issue of First Amendment protection for the street sale of art in a case involving facts similar to those presented in these cases. In San Francisco Street Artists Guild v. Scott, 37 Cal.App.3d 667, 112 Cal.Rptr. 502 (1974), artists and craftspeople who wished to sell works (including paintings and sculptures) of their own creation on the sidewalks of San Francisco were denied the licenses required by a city ordinance. The California Court of Appeal found that the works were not "so likely to communicate expression of the type of ideas held sacred by the First Amendment as to vest them with such broad rights as are held by pamphleteers or purveyors of newspapers." Id. 112 Cal.Rptr. at 505. The court therefore refused to "enlarge" the First Amendment to protect the commercial activity of selling arts and crafts on public sidewalks. Id.

Plaintiffs argue that Milbry and San Francisco Street Artists are not persuasive because there was no indication in those cases that artists were unable to obtain licenses, whereas in this case, plaintiffs allege that they are unable to obtain licenses. (Lederman Pl.'s Reply Mem., at 3-4.)

The text of the First Amendment explicitly refers to "speech" and "the press." The precise nature of First Amendment protection for painting and sculpture with no verbal elements has not been addressed by the federal courts. Although several opinions include generalized statements concerning the protection of artistic works by the First Amendment, see Miller v. California, 413 U.S. 15, 34, 93 S.Ct. 2607, 2620, 37 L.Ed.2d 419 (1973) ("The First Amendment protects works which, taken as a whole, have serious...