Lederman v. N.Y.C. Dep't of Parks & Recreation

• Decision Date: 01 October 2012
• Docket Number: No. 10 Civ. 4800(RJS).,10 Civ. 4800(RJS).
• Citation: 901 F.Supp.2d 464
• Parties: Robert LEDERMAN and Jack Nesbitt, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

901 F.Supp.2d 464

Robert LEDERMAN and Jack Nesbitt, Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al., Defendants.

No. 10 Civ. 4800(RJS).

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

Oct. 1, 2012.

Julie Marie Milner of Milner Law Office, PLLC, Elmhurst, NY, for Plaintiffs.

Michael A. Cardozo, Corporation Counsel of the City of New York, as well as Mark W. Muschenheim, Teresita Villaseca Magsino, and Sheryl R. Neufeld, of Counsel, New York, NY, for Defendants.

memorandum and order

RICHARD J. SULLIVAN, District Judge.

Plaintiffs Robert Lederman and Jack Nesbitt, visual artists who sell their work on sidewalks and in public parks in New York City (the “City”), bring this suit challenging the constitutionality of recent revisions to the Rules of the City of New York (“R.C.N.Y.”) governing where “expressive matter vendors”—defined as sellers of books, art, and similar work—may sell their wares. See 56 R.C.N.Y. §§ 1–02, 1–05 (the “Revisions”). Specifically, the Revisions contemplate that in Battery Park, Union Square Park, the High Line, and certain parts of Central Park, expressive matter vendors may set up display stands and the like for sales only in a limited number of designated spots, which are allocated on a first-come, first-served basis (the “spot designations”). Id. § 1–05(b)(2)-(3). Additionally, the Revisions set forth general restrictions on the sale of expressive matter in non-designated areas of Central Park and all other City parks (the “general expressive matter vending restrictions”). Id. § 1–05(b)(4)-(8).

Before the Court is Defendants' motion for summary judgment, made pursuant to Federal Rule of Civil Procedure 56.¹ For the reasons that follow, Defendants' motion is granted in its entirety.

I. Background²

The New York City Department of Parks and Recreation (the “Parks Department”) is charged with the management and care of all parks in the City, and is directed to maintain the beauty and utility of those parks. See New York City Charter (“Charter”) § 533(a)(1); (Decl. of Jack T. Linn, dated Sept. 7, 2011, Doc. No. 40 (“Linn Decl.”), ¶ 3). To fulfill this mandate, the Parks Department is authorized to promulgate rules and regulations for the use, management, and protection of public parks. Charter § 533(a)(9). These rules and regulations are set forth in 56 R.C.N.Y. § 1–01, et seq. ( See Linn Decl. ¶ 3.)

Under the Parks Department's Rules, “vending” constitutes selling, offering for sale, hiring, leasing, letting, or providing or offering to provide services or items in exchange for a donation. 56 R.C.N.Y. § 1–05(b)(1). It is generally unlawful to vend on property under the Parks Department's jurisdiction, including the sidewalks that adjoin parkland, without a permit from the Parks Department. Id.; Charter § 533(a)(5). However, vendors of “expressive matter”—defined as “materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, or sculpture”—are not required to obtain permits to sell their wares on Parks Department property. 56 R.C.N.Y. §§ 1–02; 1–05(b)(2).

Likewise, no license is required to vend expressive matter on City streets and sidewalks that are not under the Parks Department's jurisdiction. See N.Y.C. Admin. Code (“Admin. Code”) § 20–473; Bery v. City of New York, 97 F.3d 689 (2d Cir.1996). However, expressive matter vendors on the City's streets and sidewalks must nonetheless comply with the General Vendor Laws relating to, inter alia, the size and placement of their vending tables as set forth in the City's Administrative Code. Admin. Code §§ 20–465(a)–(f), (k)-(q), 20–473. These restrictions do not address the parks specifically, and the Parks Department does not have authority to enforce them. (Linn Decl. ¶¶ 6–7.)

A. Prior Attempts to Regulate Expressive Matter Vendors ³

Though expressive matter vendors are exempt from the permit and license requirements applicable to vendors of other goods, the City has several times attempted to promulgate rules to regulate expressive matter vendors in certain respects. As a result of those efforts, the City and various expressive matter vendors have waged an ongoing battle with regard to the City's regulation of where and how those vendors may sell their wares.

For example, in 1996, in Bery v. City of New York, the Second Circuit addressed a licensing scheme that required all vendors other than book sellers to obtain a general vendor license before selling their wares in any public space. 97 F.3d 689, 692 (2d Cir.1996). As part of the regulatory scheme, only 853 general vendor licenses were issued, and licenses became available only to new applicants when current license holders failed to renew. Id. As a result, at the time of the Bery decision, the waiting list to acquire a license had grown to between 500 and 5,000, and no new licenses had been issued in the previous fifteen years. Id. at 693, 697 n. 7. The Second Circuit concluded that expressive matter vendors were entitled to “full First Amendment protection” and, on these facts, that the City's licensing scheme operated as “a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York.” Id. at 696–97. Consequently, the Second Circuit concluded that the regulations were “too sweeping to pass constitutional muster.” Id. at 697.

Taking to heart the Bery court's suggestion that “there exist less intrusive means” to accomplish the City's objectives, such as “a rotating first-come, first-served lottery system for assigning a limited number of licenses,” id. at 698 n. 8 (citation omitted), the City amended its regulatory scheme in 1998 to provide for “seventy-five site-specific permits for art vendors in Manhattan parks,” see Lederman v. Giuliani, No. 98 Civ.2024(LMM), 1998 WL 186753, at *1 (S.D.N.Y. Apr. 17, 1998) (“ Lederman I ”). As part of that scheme, 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. After declining to obtain permits, and consequently being ticketed, the plaintiffs in Lederman I brought suit and attempted to preliminarily enjoin further enforcement of the regulations 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, holding that the regulations were content-neutral time, place, and manner restrictions. Id. at *3, *6. Specifically, Judge McKenna concluded that, first, “[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. at *3. Additionally, he found that the “regulations [were] narrowly tailored to serve the government's interest.” Id. Finally, Judge McKenna held that the regulations left “open alternative avenues for communication,” because “[a]n unlimited number of permits are available for Prospect Park in Brooklyn” and “[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. at *3–4. After discovery, the parties filed motions for summary judgment. At that point, Judge McKenna concluded—without disturbing his preliminary analysis of the regulations' constitutionality—that, as a matter of state administrative law, the regulations should be interpreted 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) (“ Lederman II ”), aff'd70 Fed.Appx. 39, 40 (2d Cir.2003).

B. The Revisions

After Judge McKenna's decision, the City saw an increase in vendors in certain parks between 2001 and 2010. ( See Linn Decl. ¶¶ 9–10; id. Ex. B; Decl. of Sheryl R. Neufeld, dated Sept. 7, 2011, Doc. No. 38 (“Neufeld Decl.”), Ex. L at 11:15–20, 16:20–17:3; id. Ex. N at 31:18–21.) To address concerns about the proliferation of vendors in those parks, the Parks Department began to contemplate ways to regulate expressive matter vendors on its property. (Linn Decl. ¶ 6, n. 3.) The Parks Department specifically targeted expressive matter vendors because vendors of non-expressive matter were already subject to numerous requirements set forth in the individual permits issued to them by the Parks Department. (Linn Decl. ¶ 12; Decl. of Julie Milner, dated Oct. 10, 2011, Doc. No. 61 (“Milner Decl.”), Ex. F ⁴); see also 56 R.C.N.Y. § 1–05(b)(1) (“No person in or on any property under the jurisdiction of the Department shall [vend] except under and within the terms of a permit, or except as otherwise provided by law.”).

On March 24, 2010, the Parks Department published the proposed Revisions, and on April 23, 2010, held a public hearing at which over 100 members of the public expressed their opinion of the proposed rules. (Linn Decl. ¶¶ 11, 13, 22, Ex. A.) Based on the comments at the hearing, and over 200 written comments, the proposed rules were revised, and the revised rules were published in the City Record on June 18, 2010. ( Id. ¶¶ 11, 13, Ex. A.) The revised rules became effective on July 19, 2010. ( Id. ¶ 13.) Under the final version of the Revisions,

[p]ersons may vend expressive matter ... on property under jurisdiction of the [Parks] Department without a permit, but must comply with all applicable provisions of these rules. However, in the specific locations enumerated...