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Baker v. City of New York
United States District Court, S.D. New York.September 26, 2002Not Reported in F.Supp.2d (Approx. 18 pages)
Baker v. City of New York
United States District Court, S.D. New York.September 26, 2002Not Reported in F.Supp.2d (Approx. 18 pages)
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ralph BAKER, Plaintiff,
v.
THE CITY OF NEW YORK, Raymond W. Kelly in his official capacity as Commissioner of the New York City Police Department, and Patricia Reed Scott in her official capacity as Commissioner of the City of New York Office of the Mayor, Office of Film, Theatre and Broadcasting, Defendants.
No. 01 CIV. 4888(NRB).
Sept. 26, 2002.
Attorneys and Law Firms
Nelson M. Farber, Esq., New York, Counsel for Plaintiff.
Sheryl R. Kamholz, Esq., Robin Binder, Esq., Gabriel Taussig, Esq., Corporation Counsel of the City of New York, New York, Counsel for Defendants.
MEMORANDUM AND ORDER
BUCHWALD, District J.
*1 Ralph Baker brings this civil rights action challenging the regulation of his so-called “street photography” by New York City (the “City”). The parties have conducted discovery, and have cross moved for summary judgment.1 For the reasons set forth below, Mr. Baker's motion is denied and the defendants' motion is granted.
INTRODUCTION
The public streets and sidewalks of the City play host to a wide variety of commercial activity: musicians play, poets speak, and jugglers juggle, all with their hats upturned on the ground, hoping for spontaneous remuneration. Food carts sell hot dogs, falafal, and even baked potatoes. Vendors' tables display everything from postcards to parasols. One can have his neck massaged, his name written on a grain of rice, or his future told, all for a fee. On rainy days, umbrellas can be purchased on nearly any corner, while on cold days, scarves and mittens can easily be found. Whether one supports the Giants, Jets, Yankees, or Mets, he can be sure to find a cap announcing his allegiance.
Plaintiff Ralph Baker is a professional photographer, but he has neither studio nor darkroom. Rather, he plies his trade on the sidewalks of the City. Camera in hand, Mr. Baker offers to photograph passers-by, and produce prints on the spot, all for under $20.2 See Declaration of Nelson M. Farber, Esq., dated February 25, 2002, (“Farber Decl.”) Ex. F (examples of photographs taken by Mr. Baker). As Mr. Baker does not advertise his services in print, television, or other media,3 he relies to a great extent on pedestrians, usually tourists, to see him and decide to engage his services.4 Accordingly, Mr. Baker's favorite locations to shoot are some of the most densely packed areas in the City, such as Times Square, Wall Street, and Rockefeller Center during Christmastime.
This reasonable business decision, however, has led to numerous run-ins with the New York City Police Department (“the NYPD”), which is charged with, inter alia, ensuring the orderly and efficient movement of pedestrians and vehicles through the City. Specifically, Mr. Baker has been repeatedly arrested for “obstructing vehicular or pedestrian traffic” in violation of N.Y. Penal Law § 240.20(5). See Farber Decl. Ex. H (copies of summonses for arrests on April 4, October 28, December 9, and December 23, 2001).
In an attempt to avoid arrest, Mr. Baker has applied for permits from the Mayor's Office of Film, Theatre, and Broadcasting (“the Mayor's Office”).5 The Mayor's Office is “responsible for overseeing all aspects of filming and still photography within the City [ ], including issuing permits to engage in such activity.” McCann Decl. ¶ 1. Defendants, however, take the position that Mr. Baker's activity falls under the jurisdiction of the General Vendors statute, N.Y.C. Admin. Code § 20–452 et seq., rather than that of the Mayor's Office. Defs.' Opp. at 10.
In his Complaint, Mr. Baker seeks injunctive and declaratory relief, as well as money damages. He alleges that the “per se” denial of a still photography permit by the Mayor's Office based upon his purported status as a “general vendor” violates the First Amendment and Equal Protection Clause of the Constitution. He also claims that the NYPD's interference6 with his street photography pursuant to the General Vendors statute violates these two Constitutional provisions.
BACKGROUND
I. General Vendors Statute
*2 In 1977, the City adopted a statutory scheme to regulate the sale of goods in public spaces. See N.Y.C. Local Law No. 33 for 1977. The General Vendors statute, presently codified at N.Y.C. Admin. Code § 20–452 et seq. (2001), defines a “[g]eneral vendor” 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). With certain exceptions, such general vendors must obtain a license from the City to so vend. Id. § 20–453. In addition to the licensing requirement, there are numerous regulations with respect to when, where, and how general vendors may pursue their vocation. E.g., id. § 20–465(a) (general vendors may only vend on sidewalks that are at least twelve feet wide); id. § 20–465(e) (general vendors may not “vend within any bus stop or taxi stand, or within ten feet of any driveway, any subway entrance or exit, or any corner”). Violation of either of the these statutory sections is a criminal offense. Id. § 20–472(a) (violation of the licensing requirement is punishable as a misdemeanor, and offenders may be imprisoned); id. § 20–472(e) (same for violations of § 20–465).
One important section of the General Vendors statute that has survived intact from its inception in 1977 provides as follows:
Where exigent circumstances exist and a police officer or other authorized officer or employee of any city agency gives notice to a general vendor to temporarily move from any location such general vendor shall not vend from such location. For the purposes of this subdivision, exigent circumstances shall include, but not be limited to, unusually heavy pedestrian or vehicular traffic, existence of any obstructions in the public space, an accident, fire or other emergency situation, a parade, demonstration or other such event or occurrence at or near such location.7
N.Y.C. Admin. Code § 20–465(k) (emphasis supplied). As anyone who has visited the City knows, however, “heavy pedestrian or vehicular traffic” is hardly “unusual[ ].” Id. Thus, just two years later, the City found that
the presence of general vendors in certain parts of the city has caused serious congestion on the streets and sidewalks, preventing the regular flow of pedestrian and vehicular traffic, forcing pedestrians off the sidewalk, and thereby creating the increased potential for automobile and other vehicular accidents, and posing an extremely serious threat to the health, safety and well-being of citizens of, and visitors to, the city[,] it is necessary to prohibit general vending in those parts of the city, and at those times, where such congestion has been found regularly to exist.... [Furthermore,] it is appropriate for the commissioner of the department of consumer affairs8 to designate those areas of the city, and those times, where such congestion has been found regularly to exist.
*3 N.Y.C. Local Law No. 50 for 1979, at § 1 (emphasis supplied). The City has since promulgated a list of streets where “[n]o general vendor or food vendor may vend ... at the times specified.” N.Y.C. Admin. Code § 2–310; see R.C.N.Y. § 2–314 (enumerating the restricted streets and times). Outside of these areas, however, law enforcement agents in the field are empowered, and required, to make ad hoc, case-by-case determinations as to whether a given location at a given time is too congested to permit vending, under the doctrine of exigent circumstances. N.Y.C. Admin. Code § 20–465(k).
Several years after the genesis of the General Vendors statute, the City found and “declare[d] that it is consistent with the principles of free speech and freedom of the press to eliminate as many restrictions on the vending of written matter as is consistent with the public health, safety and welfare.” N.Y.C. Local Law No. 33 for 1982, at § 1. Accordingly, the City exempted all “general vendors who exclusively vend written matter [ ] from licensing requirements.” Id.; see N.Y.C. Admin. Code § 20–453 (2001) (“it shall be lawful for a general vendor [of exclusively written matter] to vend such without obtaining a license therefor”). In addition, the City “declared that general vendors who exclusively vend written matter with the aid of small portable stands should be exempted from restrictions on the time, place and manner of their vending activity insofar as such exemption does not constitute a threat to the public health, safety or welfare.” N.Y.C. Local Law 33 for 1982, at § 1. The General Vendors statute was amended accordingly, and vendors of written matter were exempted from nearly all the regulations presently found in § 20–465. Id. § 4.
By 1993, however, the City found that due to “the enormous proliferation” of vendors of exclusively written matter, “a threat to the public, health, safety and welfare exists due to the practice of permitting [such] vendors ... to vend on sidewalks without subjecting them to certain placement and location restrictions.”9 N.Y.C. Local Law No. 45 for 1993, at § 1. In response, the City applied “certain of the restrictions applicable to other vendors, such as those which ... restrict vending on certain congested streets” to vendors of exclusively written matter. Id. The most notable change under the 1993 amendments were that vending of exclusively written matter
with the use a vehicle, table, cart, stand or other similar device shall be lawful on blocks and at times where either food vending or general vending is permitted, provided the table, cart, stand or other similar device used by the vendor of written materials occupies no greater sidewalk space than that permitted for other general vendors.
Id. Thus, vendors of exclusively written matter are divided into two groups based on whether they used a table, cart, or similar device. Those who do use such a device are prohibited from vending at the locations and times where both general and food vending are prohibited, N.Y.C. Admin. Code § 20–473 (2001); see R.C.N.Y. § 2–314 (listing streets and times),10 but those who do not do so may vend even at those locations during the prohibited times, unless “exigent circumstances” exist.11 Id. § 20–465(k).
II. The Mayor's Office
*4 The Mayor's Office works with production companies, photographers, film makers, and others to balance the requirements of the “shoot” with the needs of the community where it is to take place. See generally McCann Dep. For example, when the producers of the television show “Law & Order” want to film a scene on the steps of the New York State Supreme Court at 60 Centre Street, they apply to the Mayor's Office for a permit to do so.12 The Mayor's Office will review the permit, negotiate13 with the producers regarding the time and size of the shoot, parking and law enforcement needs, and, in all likelihood,14 grant the permit. As the City maintains that Mr. Baker's street photography is solely regulated by the General Vendors statute, Def.'s Opp. at 10, the Mayor's Office has refused to grant a permit to Mr. Baker for his street photography.15 McCann Decl. ¶ 17.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Federal Rules of Civil Procedure mandate the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the record, we must assess the evidence in “a light most favorable to the nonmoving party” and resolve all ambiguities and “draw all reasonable inferences” in its favor. American Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Application of the General Vendors Statute to Mr. Baker
The City has chosen to apply the General Vendors statute, rather than any other set of rules, regulations, or authority, such as that of the Mayor's Office, to Mr. Baker's street photography. Def.'s Opp. at 10 (“Baker is in fact a vendor”). However, Mr. Baker argues that regulating him as a general vendor to “is like trying to put square pegs in a round hole.” Pl.'s Mem. at 14. We cannot quarrel with the City's application of the General Vendors statute to Mr. Baker's street photography. The definition of a general vendor under N.Y.C. Admin. Code § 20–452(b) is a “person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services ...”
Notwithstanding Mr. Baker's testimony to the contrary, Baker Dep. at 26, it is obvious that Mr. Baker does indeed “sell[ ]” prints to his customers. N.Y.C. Admin. Code § 20–452(b). The fact that the prints do not exist until a moment before they are sold does not affect our construction of this statute. Furthermore, even under Mr. Baker's own view of his conduct, whereby he “get[s] paid for taking a picture,” Baker Dep. at 26, this conduct clearly constitutes the sale of “services,” which is included in the statutory definition of general vending. N.Y.C. Admin. Code § 20–452(b). Thus, under the plain language of the General Vending statute, Mr. Baker's street photography is a “[g]eneral vending business,” N.Y.C. Admin Code § 20–452(c), and Mr. Baker is a “[g]eneral vendor.”16 Id. § 20–452(b).
*5 It is important to note, however, that the City acknowledges that Mr. Baker's “street photography is protected First Amendment expression,” and, therefore, imposes upon him a significantly less stringent set of regulations than those to which ordinary general vendors are subject. Defs.' Mem. at 11. As discussed above, N.Y.C. Admin. Code § 20–453 mandates that most general vendors obtain a license to vend, but that vendors of exclusively written matter may “vend such without obtaining a license therefor.” In Bery v. City of New York, the Second Circuit found that the City's failure to extend this exception to vendors of visual art “constitute[d] an unconstitutional infringement of their First Amendment rights.” 97 F.3d at 698. Upon remand, the City entered into a consent decree whereby the City was permanently enjoined from enforcing the licensing requirement against vendors of “paintings, photographs, prints and/or sculpture, either exclusively or in conjunction with newspapers, periodicals, books, pamphlets, or other similar written matter, in a public space.” Permanent Injunction on Consent, Bery v. City of New York, No. 94 Civ. 4253 (S.D.N.Y. Oct. 21, 1997). Furthermore, such “First Amendment Vendors,”17 Def.'s Mem. at 10, are “subject to only those vending restrictions which apply to vendors of exclusively written matter, as set forth in [N.Y.C.] Admin. Code § 20–473.”18 Id.
Mr. Baker's challenge to the City's application of the General Vendors statute to his street photography, therefore, must fail. See Pl.'s Reply at 5–7. Not only is such application entirely consistent with the language and purpose of the General Vendors statute, but, as the Second Circuit has recently stated, we are obliged to “defer to the City's construction of a regulation it is charged with administering.” Housing Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir.2002) (citing Edwards' Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210, 6 L.Ed. 603 (1827)). We do not sit to instruct the City on precisely how to regulate the myriad commercial interactions that take place in its public spaces and its concern for public safety, but rather to determine whether the City's regulatory scheme, as applied to Mr. Baker's street photography, passes constitutional muster. Id. at 481.
III. First Amendment Analysis
It is undisputed that Mr. Baker's street photography is First Amendment expression and that his expression takes place in a traditional public forum. Defs.' Mem. at 11. Mr. Baker argues that the City's application of the General Vendors statute to Mr. Baker is unconstitutionally overbroad. Pl.'s Mem. at 17. The City counters that its regulation of First Amendment vendors constitutes a constitutionally valid time, place, and manner restriction. Id. at 12. As stated by the Supreme Court,
even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
*6 Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks and citations omitted). We consider these requirements in turn.
A. Content Neutrality
Mr. Baker contends that the City's First Amendment vending regulations are content and viewpoint based, and, therefore, that strict scrutiny should apply to our inquiry. Pl.'s Mem. at 18. He argues that the City's distinction between still photographers operating with permits issued by the Mayor's Office and those that do not, such as Mr. Baker, operates as content based discrimination. Id. His argument is misplaced, however, because the key factor in determining content neutrality is the “purpose” of the government entity whose regulation is being challenged. Ward, 491 U.S. at 791.19 Here, the record is clear that the City's purpose in making this distinction is not based on the content of the expression produced by street photographers, but on the City's legitimate concern with controlling congestion on the streets and sidewalks for the “health, safety, and well-being” of residents and visitors.20 N.Y.C. Local Law No. 50 for 1979, at § 1; Compare N.Y.C. Local Law No. 33 for 1982, at § 1 (exempting vendors of exclusively written matter from “restrictions on the time, place and manner of their vending activity insofar as such exemption does not constitute a threat to the public health, safety or welfare) with N.Y.C. Local Law No. 45 for 1993, at § 1 (limiting the exemptions enacted in 1982 because the “enormous proliferation” of vendors of exclusively written matter had impeded “access of emergency services ... to the entrances of buildings and fire hydrants; imped [ed] pedestrian movement and causing pedestrian congestion ... and ... police foot patrols”). As such, the regulations are content-neutral, and we shall not apply strict scrutiny.
B. Narrow Tailoring
Having established that the City's regulation of Mr. Baker's street photography is content neutral, the focus of our inquiry moves to whether the City's regulatory scheme is “narrowly tailored to serve a significant government interest.” Ward, 491 U.S. at 791. The Supreme Court has held that this requirement
is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests.
In the case at bar, the City has only pointed to one “significant government interest” served by the First Amendment vending regulations, namely, the City's interest in “keeping is streets and sidewalks safe and free of congestion.” Defs.' Mem. at 15; see also, e.g., N.Y.C. Local Law No. 50 for 1979, at § 1; N.Y.C. Local Law No. 112 for 1989, at § 1; Transcript of Daniel J. Albano taken on October 25, 2001, (“Albano Dep.”) at 15 (N.Y.PD Lieutenant testifying that the NYPD's “major concern [with respect to First Amendment vendors is] the flow of pedestrian and vehicular traffic, public safety”). This is clearly a legitimate and important concern to the City. See Madsen v. Women's Health Ctr., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (noting that government has a “strong interest in ensuring the public safety and order [and] in promoting the free flow of traffic on public streets and sidewalks”); Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (“a State's interest in protecting the safety and convenience of persons using a public forum is a valid governmental objective”) (internal quotation marks and citation omitted).
*7 Therefore, we must examine whether the City's First Amendment vending regulations are narrowly tailored to this goal. As discussed above, the City has modified its regulatory scheme several times since the late 1970s, both by legislative action and in response to civil rights lawsuits. Mr. Baker argues, however, that these carefully considered regulations constitute “an onerous prior restraint” upon him, Pl.'s Mem. at 20, because his still photography is “location specific.” Baker Aff. ¶ 14. Mr. Baker's position is essentially the following: The time, place, and manner restrictions imposed by the City on other First Amendment vendors may fairly balance First Amendment rights with public safety and well-being on the streets and sidewalks because their sale of pamphlets, paintings, or other creative works can be effected just as easily on one street or another. For Mr. Baker to create his expressive product, however, he must be at certain locations and at certain times, such as Rockefeller Center during Christmas time or St. Patrick's Cathedral in the afternoon light.
We agree that the location specificity of Mr. Baker's street photography does indeed distinguish his conduct from that of the plaintiffs in Bery.21 Nevertheless, a careful cross-referencing of R.C.N.Y. §§ 2–310, 2–314, N.Y.C. Admin. Code §§ 17–315, 20–465.1, and 20–473 shows that the City's First Amendment vending regulations are fairly narrowly tailored and do not substantially burden street photography expression more than is necessary to prevent congestion. As noted above, a street photographer is permitted to practice his craft on any sidewalk in the City, so long as he does not set up a table, cart, or similar device, and provided he complies with certain sensible restrictions, such as not vending over a subway grating or at a subway entrance. Thus, Mr. Baker is permitted, as a First Amendment vendor, to take and sell photographs of tourists in front of St. Patrick's Cathedral, Rockefeller Center, or any other site in the City, as long as he does not “set up” a table, cart, or similar device. Albano Dep. at 34. Mr. Baker testified that he currently uses a Nikon D1X camera (2.5 lbs.) and a Hewlett–Packard 1218 printer (15 lbs.) in his street photography. Therefore, it would be possible for Mr. Baker to carry his equipment in some sort of backpack, which would permit him to engage in street photography on any street at any time, except under exigent circumstances.
Mr. Baker, however, “always works with [ ] his printer cart.” Pl.'s Mem. at 5. Therefore, he is subject to the time and place restrictions applicable to First Amendment vendors. Mr. Baker asserts that the list of streets from which he (and his cart) are prohibited “is expansive and severely restricts [his] access to numerous desired locations that are at the core of his operation 7 days [a] week[ ] at commercially optional [sic, probably optimal] hours.”22 Pl.'s Mem. at 5. To a significant extent, Mr. Baker is absolutely correct. For example, he may not vend (with his cart) on Broadway or Seventh Avenue, from 42nd to 45th Streets, the heart of Times Square, from Monday through Saturday, 8 a.m. to 11 p.m.23 6 R.C.N.Y. § 2–314; N.Y.C. Admin. Code § 17–315. Nor may he so vend on Fifth Avenue, in front of St. Patrick's Cathedral, Trump Tower, or Rockefeller Center, from Monday through Saturday, 8 a.m. to 7 p.m., or on Sunday during the Christmas holiday season from 10 a.m. to 6 p.m. 6 R.C.N.Y. § 2–314; N.Y.C. Admin. Code § 17–315.
*8 There is a fundamental problem, however, with Mr. Baker's argument that the City's First Amendment regulations are not sufficiently narrowly tailored. Pl.'s Mem. at 20. Even assuming, arguendo, that these regulations are not narrowly tailored,24 a more careful approach by the City would offer no solace to Mr. Baker. This is because Mr. Baker seeks to engage in street photography at precisely those times, and at those locations, where pedestrian traffic is heaviest. See, e.g., Baker Dep at 8–12. Therefore, while the City's First Amendment regulations may not be as narrowly tailored as they could be, any such deficiency does not operate to deprive Mr. Baker of his First Amendment right to free expression.
C. Alternative Channels
Moreover, we find that the City's regulatory scheme “leave[s] open ample alternative channels” for Mr. Baker to express himself. Ward, 491 U.S. at 791. First, as noted above, if he were to carry his equipment, rather than transport it in a cart, he would be permitted to vend on any street and at any time. Second, to the extent that Mr. Baker seeks to capture an artistic shot of a City landmark such as St. Patrick's Cathedral, there is nothing that prevents him from applying to the Mayor's Office for a one or two day permit.25 Finally, Mr. Baker is perfectly free to set up his printer cart on a street where it is permitted, walk to a nearby street to attract customers, take their photograph, and return to his cart to produce the print and complete the transaction.26 For example, First Amendment vendors are permitted to vend with a table, cart, or similar device on most of 43rd Street,27 including near its intersection with Seventh Avenue and Broadway in Times Square.28 This would be a convenient location for Mr. Baker to set up his printer cart, while taking photographs of tourists on Seventh Avenue or Broadway.29 In short, even under the present regime, Mr. Baker could express himself in nearly the exact manner as he seeks in this action.
D. Impermissible Discretion and Prior Restraint
Finally, Mr. Baker asserts that, regardless of the niceties of our careful statutory construction, “[d]e facto limitations on Mr. Baker's presence are contained in [N.Y.C.] Admin. Code § 20–465(k)'s ‘exigent circumstances' exception, which provides catchall authority for an officer to dislodge Mr. Baker.” Pl.'s Mem. at 6; see also id. at 17 (describing the exigent circumstances exception as “pure force unaccompanied by procedural safeguards”) (citing Tunick v. Safir, 209 F.3d 67, 93 (2d Cir.2000) (Sack, J., concurring)). As discussed above, the exigent circumstances exception permits law enforcement officers to make an on-the-spot decision that it is a threat to the public safety and well being to permit general vending at a specific time and place, even if such vending is generally permitted under the General Vendors statute.
N.Y.C. Admin. Code § 20–465(k) specifies that “exigent circumstances shall include, but not be limited to, unusually heavy pedestrian or vehicular traffic, existence of any obstructions in the public space, an accident, fire or other emergency situation, a parade, demonstration or other such event or occurrence at or near such location.” In addition, the NYPD Patrol Guide provides specific directions on where and how far to move a vendor during an exigent circumstance. See NYPD Patrol Guide Procedure No. 218–39 (Jan. 1, 2000) (“NYPD Pro. No. 218–39”). For example, when a “uniformed member” of the NYPD is when confronted with “[u]nusually heavy pedestrian or vehicular traffic,” he is to “temporarily move” vendors “[t]he SHORTEST distance in DIRECTION OF EITHER: three (3) city blocks, or 750 feet, on direct line of sight,” and when he must move a vendor due to “[o]ther unusual events,” he is to move the vendor “[a]s circumstances require after conferral with a supervising officer.” Id.
*9 Thus, contrary to Mr. Baker's suggestions, Baker Aff. ¶ 33 (stating that police censor and chase him away “whenever they feel like it”), officers do not have unfettered discretion to prohibit vending under the exigent circumstances exception. The instant case is, therefore, entirely distinguishable from cases such as Shuttlesworth v. Birmingham. 394 U.S. 147, 150–51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). In Shuttlesworth, the Supreme Court considered a municipal ordinance that provided for granting of a permit for a “ ‘parade or procession or other public demonstration ... unless in [the City Commission's] judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.” ’ Id. at 149–50. The Court found that the ordinance was an unconstitutional “prior restraint” on speech because the ordinance “conferred upon the City Commission virtually unbridled and absolute power” to grant or refuse a permit. Id. at 149–50.
Here, by contrast, N.Y.C. Admin. Code § 20–465(k) and NYPD Pro. No. 218–39 provide sufficient constraints on law enforcement officers' determination of whether a given “circumstance” is, indeed, “exigent,” and, if so, what steps they are to take in response thereto. Cf. Housing Works, 283 F.3d at 479–80 (distinguishing Shuttlesworth because officials had only “very limited discretion”). Moreover, the exigent circumstances exception does not operate as a “prior restraint” on speech because it does not “authorize[ ] suppression of speech in advance of its expression,” but, rather, provides law enforcement officers with a method of dealing with unanticipated events. Ward, 491 U.S. at 795 n. 5. In short, no part of the City's regulation of Mr. Baker's street photography constitutes a prior restraint, nor does any aspect of the regulatory scheme grant an impermissible measure of discretion to law enforcement officers.
In light of the above discussion, we conclude that the City's regulation of Mr. Baker's expressive activity constitutes a permissible time, place, and manner regulation of First Amendment protected expression. The City does not run afoul of the First Amendment when it regulates Mr. Baker as a First Amendment vendor.30 Furthermore, our findings on the First Amendment issue applies with equal force to Mr. Baker's claims under the Equal Protection clause. See DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 411 n. 7 (6th Cir.1997)
IV. Vagueness Analysis
Mr. Baker argues that the General Vendors statute “as applied to [him] is murky to the point of being unconstitutionally vague, as it requires local officials, police officers and judges to guess whether he falls under the [statute].” Pl.'s Mem. at 16 (citing Bissinger, 625 N.Y.S.2d at 825 n. 4). “To determine whether a statute is unconstitutionally vague as applied, the Supreme Court has articulated a two-part test: the court must first determine whether the statute ‘give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited’ and then consider whether the law ‘provide[s] explicit standards for those who apply [it].” ’ United States v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir.1992) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).
*10 The first part of this test is easily met, as the General Vendors statute is plainly written, and clearly applies to the sale of “goods or services.” N.Y.C. Admin. Code § 20–452(b) (defining “[g]eneral vendor”). It is obvious that Mr. Baker's street photography is contemplated by the statute. See note 16, supra. Similarly, the General Vendors statute passes the second part of the vagueness analysis, because it sets forth, in significant detail, the standards required for vendors. See also our discussion of the “exigent circumstances” exception, supra. We therefore reject Mr. Baker's contention that the statute is unconstitutionally vague.
V. Unlawful Arrests
Finally, defendants have moved for summary judgment on the Thirteenth Count of Mr. Baker's Complaint, seeking money damages for unlawful arrests. Mr. Baker has presented four summonses for violations of N.Y. Penal § 240.20(5), which provides that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, ... [h]e obstructs vehicular or pedestrian traffic.”31 Mr. Baker claims that his arrests were unlawful because he was arrested “for engaging in his constitutionally protected street photography activities.” Compl. ¶ 90. We have previously found, however, that the City's regulation of Mr. Baker's street photography passes constitutional muster. Mr. Baker has not offered any reason to find these arrests unconstitutional apart from his belief that the underlying regulation is constitutionally infirm. As we are obliged to issue summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,” Celotex, 477 U.S. at 322, we grant summary judgment to defendants on Mr. Baker's Thirteenth Count as well.
CONCLUSION
For the reasons stated above, we grant summary judgment to defendants on the entirety of Mr. Baker's Complaint. The Clerk is respectfully directed to close this case.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d,Footnotes
Plaintiff has moved for summary judgment on Counts One through Twelve, but not Thirteen, of his Complaint, and defendants have moved for summary judgment on the entire Complaint.
Modern technology, namely a digital camera, portable printer, and gel battery, permit him to produce commercial quality prints without the use of a darkroom.
He would like to advertise, however, in publications such as Theater Bill and the New Yorker. Transcript of Deposition of Ralph Baker taken on October 24, 2001, (“Baker Dep.”) at 141–43.
He often carries a “place card” and wears a self-made “ID badge” identifying him as a street photographer. Baker Dep. at 21; see Farber Decl. Ex. F (examples of place cards).
As explained by the Director of Production of the Mayor's Office, the Office was
established in 1966 pursuant to an Executive Order by then Mayor John Lindsay to facilitate production related activity in the City of New York. The [Mayor's Office] is responsible for the negotiation and issuance of all permits to engage in filming or still photography on the streets of the City of New York. The [Mayor's Office] can only issue permits for activity on city-owned property.
Declaration of Dean Edward McCann dated April 3, 2002 (“McCann Decl.”), at ¶ 3; see generally William Grimes, New York Has a Full–Time Fan Promoting It as a Film Capital, N.Y. Times, Mar. 12, 1992, at C17 (describing the history and function of the Mayor's Office).
By “interference,” Mr. Baker means “arrest, direction to move away, [and] confiscation of equipment.” Compl. ¶ 62.
Special Operations Lt. Brian Linkletter, whose Midtown South precinct includes part of the Times Square area, described “exigent circumstances” as “[a]ny situation that endangers public safety or interferes with the free flow, you know, of pedestrian traffic or vehicular traffic.” Transcript of Deposition of Brian Linkletter taken on January 8, 2002, (“Likletter Dep.”) at 16.
In 1995, the City delegated this authority to the Street Vendor Review Panel. N.Y.C. Local Law No. 14 for 1995, § 9 (creating N.Y.C. Admin. Code § 20–465.1); see note 10, infra.
The City further found that
this threat to the public health, safety and welfare is exacerbated by the placement of vending tables and similar devices on sidewalks along major commercial thoroughfares, blocking the access of emergency services, including fire and police personnel, to the entrances of buildings and to fire hydrants; impeding pedestrian movement and causing pedestrian congestion at major tourist points and transportation facilities; and, impeding the movement of police foot patrols along the sidewalks.
N.Y.C. Local Law No. 45 for 1993, at § 1.
N.Y.C. Admin. Code § 20–465.1(a), initially promulgated in 1995, created a “Street Vendor Review Panel” to determine which streets, and at what times, food and/or general vending would constitute “a serious and immediate threat to the health, safety and well-being of the public on the ground that such street at such time is regularly too congested by pedestrian or vehicular traffic to permit the operation of such businesses.”
Other regulations are still applicable to vendors of exclusively written matter who do not use a table, cart, or similar device. E.g., N.Y.C. Admin. Code § 20–465(e) (2001) (prohibiting, inter alia, general vending “within any bus stop or taxi stand”); id. § 20–465(m) ( “No general vendor shall vend over any ventilation grill, cellar door, manhole, transformer vault, or subway access grating”).
Examples of still photography permits granted by the Mayor's Office are as follows: Mademoiselle magazine shooting “girl looking at guy on street” for one day, from 9 a.m. to 6 p.m., in various locations in Manhattan, using a handheld camera, with seven people and one vehicle; Richard Bowditch shooting “man in business attire looking at Nasdaq billboard” for two days (the second being a rain date), from 3:30 to 6 p.m. in Times Square, using a camera, tripod, and hand-held light, with four people and no vehicles; New York University Athletic Department shooting “three basketball players for basketball media guide” for 6½ hours over two days, using a camera, tripod, and two lights with stands, with seven people and one vehicle. See Farber Decl. Ex. S.
Because the City has an interest in promoting itself as a filming location, see Grimes, supra, the “policy [of the Mayor's Office] is to work with the applicant to have their needs met, while minimizing the impact on the community and maintaining vehicular and pedestrian safety.” McCann Decl. ¶ 10.
Fully “99 percent” of still photography permit applications are approved without modification, and many of the remainder are approved after consultation and negotation with the Mayor's Office. Transcript of Deposition of Dean Edward McCann taken on October 16, 2001, (“McCann Dep.”) at 12.
While Mr. Baker received permits from the Mayor's Office in 1995 and 1996, see Farber Decl. Ex. S, Director McCann states that “[t]hese permits were issued in error.” McCann Decl. ¶ 17.
Mr. Baker cites People v. Bissinger, 163 Misc.2d 667, 625 N.Y.S.2d 823 (N.Y.Crim.Ct.1994) to support his contention that he is not a general vendor within the meaning of the General Vendors statute. Pl.'s Mem. at 15. First, we observe that Bissinger is not controlling precedent. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) (where state's highest court has not “spoken on the point,” lower state court decisions should be “ ‘attributed some weight,” ’ but are not controlling) (quoting King v. Order of United Commercial Travelers, 333 U.S. 153, 160–61, 68 S.Ct. 488, 92 L.Ed. 608 (1948)). Second, we find Bissinger 's holding, that a street photographer in the City “does not fit the definition of a ‘general vendor,” ’ and that the street photographer's “ ‘products' [do not] fit the statutory language of ‘goods' or ‘services” ’ contained in N.Y.C. Admin. Code § 20–452, to be at odds with the plain meaning of the statute. The New York Court of Appeals has recently reaffirmed the unremarkable proposition that “in all cases requiring statutory construction, we begin with an examination of the statute's plain meaning.” Bluebird Partners, L.P. v. First Fidelity Bank, N.A., 97 N.Y.2d 456, 460, 741 N.Y.S.2d 181, 183, 767 N.E.2d 672 (2002). Terms such as “sell,” “goods,” and “services” are all in common usage, and there is no reason to believe that the New York Court of Appeals would interpret them in any other manner. Regardless of whether Mr. Baker is selling the “service” of photographer, or the “good” of a photograph, he engages in “general vending” when he plies his trade.
Finally, we observe that the defendant in Bissinger was charged with “unlicensed general vending.” Bissinger, 625 N.Y.S.2d at 823. The City has since entered into a consent decree that, inter alia, removed the licensing requirement for vendors who “sell[ ] ... photographs ... in a public space.” Permanent Injunction on Consent, Bery v. City of New York, No. 94 Civ. 4253 (S.D.N.Y. Oct. 21, 1997).
For convenience, we shall refer herein to the City's regulation of First Amendment vendors as the “First Amendment vending regulations.”
Section 20–473 requires us to cross-reference various provisions of the N.Y.C. Admin. Code to determine the restrictions the City places on First Amendment vendors. In addition to excepting the licensing scheme, § 20–473 exempts such vendors from certain bookkeeping requirements, and protects them from certain penalties, such as the forfeiture of their goods. Compare NYPD Operations Order No. 62 (June 25, 1997), at ¶ 5 (providing for removal of goods of First Amendment vendors who violate certain provisions of N.Y.C. Admin Code), with id. ¶ 6 (such goods shall not be vouchered for forfeiture, and offender shall not be charged any removal or storage fees).
In Ward, the Supreme Court stated:
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.
491 U.S. at 791 (internal citations omitted).
In arguing that the City's regulation of his street photography is content based, Mr. Baker argues that “there is no principled reason” why the City treats him differently than photographers who may obtain a permit from the Mayor's Office. Pl.'s Mem. at 19. The City's reasoning, however, is entirely principled, as a photographer who wishes to interact with pedestrians every day in the most congested areas of the City presents different problems than does a photographer who will shoot for only a day or two and wishes to avoid interaction with pedestrians. Compare Affidavit of Ralph Baker dated February 23, 2002 (“Baker Aff.”) at ¶ 20 (“My interaction with the subject becomes part of the subject's New York City experience, and this interaction constitutes a portion of my expressive conduct.”) with McCann Dep. at 75 (“interacting with the civilians ... is frowned upon by the [Mayor's O]ffice”).
Mr. Baker's use of, or his desire to use, backdrops, Baker Aff. ¶ 19, Baker Dep. at 18–19, is not, however, location specific, because the backdrop forms the background of the photograph, obscuring the actual location.
While Mr. Baker seeks permission to engage in street photography on every street in the City, and at any time he chooses, Baker Dep. at 75–76, it is clear that several locations in Manhattan are the true focus of this suit: Times Square (42nd to 47th Streets, between Seventh Avenue and Broadway), Rockefeller Center (Fifth Avenue between 49th and 50th Streets), St. Patrick's Cathedral (Fifth Avenue between 50th and 51st Streets), Trump Tower (Fifth Avenue at 56th Street), the southeast corner of Central Park (Fifth Avenue at 57th Street), the “Bull” in lower Manhattan (Broadway at Whitehall Street), and the City Municipal Building (Centre Street at Chambers Street). See Baker Aff. ¶ 14; Baker Dep. at 8–12; Pl.'s Mem. at 2.
The full restriction on Seventh Avenue is from 8 a.m. to midnight, Monday through Saturday, and the restriction on Broadway is from 8 a.m. to 11 p.m., but it applies every day.
Indeed, this assumption is not particularly far-fetched. For example, while Broadway is certainly frequently congested, the City's designation that Broadway is “regularly” too congested to permit vending, N.Y.C. Local Law No. 50 for 1979, at § 1, from 32nd to 52nd Streets, and from 8 a.m. until 11 p.m. every day, 6 R.C.N.Y. § 2–314, might not pass the narrow tailoring requirement of Ward. 491 U.S. at 791. In light of our discussion on alternative channels, see Part II.C, infra, however, we need not, and do not, make a finding that part or all of the City's street restrictions are overbroad.
While Mr. McCann has stated that “[t]he regulation of Mr. Baker's activity does not fall under the jurisdiction of the [Mayor's Office],” this statement must be read in context. McCann Decl. ¶ 17. Mr. McCann defined “Mr. Baker's activity” as “tak[ing] and sell[ing] freelance photographs ‘of people as they come at location of their choice,’ all day, every day.” Id. If Mr. Baker were to file a narrowly tailored permit request, such as those described in note 12, supra, we have no reason to believe that the Mayor's Office would not approve such a request. Of course, if Mr. Baker's permit application (or applications) were merely an attempt to circumvent the First Amendment vending regulations, as they have been in the past, see Farber Decl. Ex. R, the Mayor's Office could properly reject it (or them).
Such an operation might well require an assistant to watch over the cart while Mr. Baker is attracting customers or taking photographs. Mr. Baker has, however, indicated an interest in hiring employees to assist him. Baker Dep. at 71–72 (stating that, in past years, he had hired up to six employees for the Christmas season); id. at 96 (stating that, in his “ideal world,” Mr. Baker would have “[t]housands of employees” who would be “site specific and [who] would travel on [his] command”).
The only restriction on First Amendment vending with a cart on 43rd Street is on the East Side, several long blocks from Times Square. 6 R.C.N.Y. § 2–314; N.Y.C. Admin. Code § 17–315.
Many courts have upheld municipal ordinances that burden freedom of expression because they provided for alternative avenues of communication. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (emphasis supplied). Where an alternative avenue cannot be found, however, one should always ask whether an alternative street is available.
Indeed, Mr. Baker could set up his cart a mere ten feet off Times Square on 43rd Street. N.Y.C. Admin. Code § 20–465(e) (prohibiting general vending within ten feet of any corner).
Several additional issues remain, and can be dealt with summarily.
First, Mr. Baker's suggestion that the N.Y.C. Admin. Code § 20–465(p) improperly prohibits his use of a gel pack battery for his printer is not persuasive. Compl. ¶ 30(2). Section 20–465(p) states that “No general vendor shall use electricity, electrical generating equipment or oil or gasoline powered equipment, devices or machinery of any kind.” The City states that this section is aimed at preventing “vendors from using electrical cords to tap into the City's lampposts and to ensure that vendors are not using unsafe ‘home made’ generators,” and that if Mr. Baker's printer is intended to be used with the gel pack, “the use of such a printer on the public sidewalk would be permissible.” Defs.' Mem. at 17 n. 18.
Second, Mr. Baker challenges the propriety of N.Y.C. Admin. Code § 20–465(a)'s requirement that his printer cart be placed curbside. Compl. ¶ 30(3). As this section applies only to his printer cart, it does not require Mr. Baker or his subjects to be located at curbside, and therefore does not interfere with his ability to express himself by selecting the placement of his subjects or the angle of his shot.
These arrests took place at the following locations and times: April 4, 2001, at the corner of 46th Street and Seventh Avenue (Times Square); October 28, 2001, at the corner of 46th Street and Broadway (Times Square); December 9, 2001, on Fifth Avenue between 49th and 50th Streets (Rockefeller Center); and December 23, 2001, on Fifth Avenue between 49th and 50th Streets (Rockefeller Center). The October 28, 2001, summons does not specify which subsection of the disorderly conduct section it charges Mr. Baker with violating.
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