Volume 77 / Number 52 - May 28 - June 3, 2008
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since
1933

Talking Point

Gerson’s new art vending laws will create a monster

By Kurt Brokaw

I write as a 20-year faculty member at The New School and a teacher at The 92nd Street Y and The New York Society for Ethical Culture. I hold M.S. and B.S. degrees in journalism (University of Wisconsin), and taught on the University of Illinois communications faculty. I’ll be 70 this September and occasionally vend a lifetime collection of rare books on the sidewalks of New York.

While not a lawyer, I am acquainted with First Amendment law, as well as with several legal scholars here in Manhattan. In the 1890s, New York City first legally began permitting the vending of written matter to protect vendors of Yiddish chapbooks sold at a penny a copy from pushcarts on Orchard St. Essentially, that law has been respected by city councilmembers ever since, although Alan Gerson has tried unsuccessfully for a number of years to blemish and indeed wreck those honorable and significant legal traditions. Through the efforts of A.R.T.I.S.T. and its dedicated leadership under Robert Lederman, the law has widened to embrace art and photography.

One is relieved to see that Councilman Gerson’s previous proposals — which were championed and then largely abandoned — have largely faded away. These would have relocated legal vendors to obscure spots on the waterfront while restricting the vending of anything to three vendors per block (all the while ignoring the multitude of newspaper vending boxes, sidewalk cafes and paid advertising on permanent structures that crowd our city’s sidewalks). The Gerson/Phil Reed proposals were declared unfeasible and unenforceable at public hearings I attended, not just by vendors but by retailers, community board leaders and police representatives.

Gerson has just limped back with five more proposals that on their surface seem less draconian, but are just as unjust, illegal and unenforceable. Several are totalitarian in nature and deserve careful comment.

Gerson’s previous notion was to declare artwork that wasn’t two-dimensional — i.e., flat and framed — illegal. In some instances, artists found themselves unable to vend three-dimensional art objects they had created. The police eventually backed off this unwritten prohibition.

Gerson’s new definition of “art” posits a distinction between a medium that is “expressive” in nature (a flat canvas) versus a medium that is deemed “utilitarian” in nature (for example, a lampshade with the Mona Lisa painted on it). Under Gerson’s proposal, the lampshade is not “expressive” but rather “utilitarian” and thus could not be vended by its creator without a general-merchandise license. This new twist is Gerson’s three-dimensional prohibition, just expressed more subtly. Gerson has to be aware that in any court challenge, the concept of “found art” is well established as a primary expressive medium, and he will lose in a New York minute. His proposal is ill-founded and dangerous.

Gerson next proposes a 2-foot distancing of the vendor from anything else on the sidewalk — planters, permanent retailer furniture, Muni-Meters, newspaper vending boxes, permanent bike racks — everything. What he really wants to block is vending tables between the planters and advertiser-sponsored street furniture that business improvement districts, merchants and the city have permitted to crowd our sidewalks. The Trump building on Fifth Ave. in Midtown is a classic example of a multimillionaire having successfully blocked off almost an entire city block of sidewalk with giant planters.

Gerson’s proposal, however, is doomed to fail because, if enforced evenly and fairly, it would require that The New York Times vending box would have to be 2 feet from its Wall Street Journal competitor, which would have to be 2 feet from The New York Observer, and so on. Thirty feet of legal newspaper and Learning Annex vending boxes, etc., would turn into 60 feet of vending boxes, with every box also 2 feet from the permanent benches, the permanent Muni-Meters, the permanent planters, the permanent bike racks and so on. The police will be the first to tell you this is unenforceable.

Gerson’s next proposal would prohibit book and art vendors from selling out of a parked vehicle. I’ve lived in Manhattan almost 50 years and I don’t believe I’ve ever seen a book or art vendor selling out of a parked vehicle, except in enclosed flea markets in schoolyards. On the other hand, I buy my morning coffee through the window of a curbside coffee cart, and I buy my stamps through the window of a curbside U.S. Postal Service truck, and I buy my vanilla/chocolate cone through the window of a curbside ice cream truck. These parked vehicles are all over the city, every day. Perhaps what Councilmember Gerson really wants to shut down are the independent coffee wagons, Mister Softee and the U.S. Postal Service.

In addition, this Gerson proposal would also make it illegal for an art vendor to lean his artwork against his or her own parked vehicle, at curbside. Is Gerson serious? One of the ways book and art vendors use common sense to minimize their presence on the sidewalk is to keep their book tables and art-vending stands tucked as close to curbside as possible, thus keeping sidewalks clear for pedestrians.

Making sure sidewalks are passable isn’t always easy, because of the distances that permanent planters, permanent sidewalk benches, Milton Glaser’s tidy multi-newspaper boxes, permanent Muni-Meters and permanent bike racks all jut out into the walking area, not even close to the curb. Most book and art vendors are far more respectful of the public’s right to walk unimpeded than any of the above “permanent” fixtures dotting our sidewalks.

Gerson’s next proposal imposes a written test on vending laws for all vendors. Perhaps his written test should first be given to his fellow councilmembers or Department of Consumer Affairs employees or police officers on the beat. Aside from First Amendment scholars and some of the A.R.T.I.S.T. leadership, I don’t know anyone who’s truly conversant with sidewalk vending laws and all of their legaleese. What I do know, like most street vendors, are the basics of the street, and I know enough to have never had a problem on any day I’ve been at my book table.

Here’s an idea for Alan Gerson. Have a panel of distinguished journalists — including, say, Rupert Murdoch and Bill Keller and Jeff Greenfeld — take a test on vending laws. After all, Metro and AM New York vendors get to practically block our subway entrances every morning handing out their free papers. They’re
literally at the entrance — you’ve seen them and I’ve seen them and Alan Gerson has to have seen them. Is he concerned that these newspapers’ advertising-sponsored publishers may never have seen the vending rules under which other vendors of paid written matter and art have to operate? Mr. Gerson’s concerns are dreadfully out of whack.

Finally, the councilmember’s last proposal — to remove any written test for the sellers of nonperishable food products — seems at odds with his call for a written test for vendors. I’ll leave it to the food experts to comment on that one.

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