Big Apple Food Vendors' Ass'n v. Street Vendor Review Panel

• Decision Date: 06 February 1996
• Citation: 637 N.Y.S.2d 397,224 A.D.2d 219
• Parties: In re BIG APPLE FOOD VENDORS' ASSOCIATION, et al., Petitioners-Respondents, For a Judgment, etc., v. The STREET VENDOR REVIEW PANEL, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 397

637 N.Y.S.2d 397

224 A.D.2d 219

In re BIG APPLE FOOD VENDORS' ASSOCIATION, et al Petitioners-Respondents For a Judgment, etc., v. The STREET VENDOR REVIEW PANEL, Respondent-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 6, 1996.

R. Bookman, for petitioners-respondents.

E.I. Freedman, for respondent-appellant.

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered September 15, 1995, which, inter alia, granted the petition pursuant to CPLR article 78 to the extent of remanding the matter to the respondent Street Vendor Review Panel for the establishment of quantitative criteria for determining if streets are "regularly too congested" to permit street food vending and to reevaluate all streets in light of the criteria, and declared null and void that portion of the Panel's final rules which prohibit vending on 26 new streets that were not previously regulated, unanimously affirmed, without costs.

The IAS court properly directed the Panel, on remand, to formulate objective quantitative criteria for determining whether New York streets are "regularly too congested" for purposes of permitting or prohibiting street food vending at specified places and times and thereafter to reevaluate whether each street listed in the final rule published by the Panel meets that criteria.

The use of public sidewalks for street vending, which is a common and traditional use of the streets, must be exercised in such a manner so as to not unduly interfere with use of the streets by pedestrians and vehicles travelling upon them (Good Humor Corp. v. City of New York, 290 N.Y. 312, 317, 49 N.E.2d 153). Although the government may seek to curb and control street vending where the regulations rationally relate to the exercise of its police power (Duchein v. Lindsay, 42 A.D.2d 100, 102, 345 N.Y.S.2d 53, affd. 34 N.Y.2d 636, 355 N.Y.S.2d 375, 311 N.E.2d 508, appeal dismissed 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35; Huggins v. City of New York, 126 Misc.2d 908, 910, 484 N.Y.S.2d 748), an administrative agency, such as the Panel herein, is nevertheless forbidden from exercising its discretionary power without first detailing the standards or guidelines governing the exercise of that discretion (Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 34, 416 N.Y.S.2d 565, 389 N.E.2d 1086).

Local Law 14 of 1995 § 9 (Administrative Code of City of New York § 20-465.1), the legislation creating the Panel, specifically requires a street by...