Volume 78 / Number 6 - July 9 - 15, 2008
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since

Artists aren’t sold on new vendors bill, residents, too

By Albert Amateau

Swarms of street vendors, legal and illegal, have been an issue for years in Downtown Manhattan neighborhoods, particularly in Soho and along Canal St. Vendors have also been the subject of criticism in Battery Park and, after 9/11, near the World Trade Center site.

In a renewed response to the problem, City Councilmember Alan Gerson, whose district includes Soho and part of Chinatown, has proposed legislation that he hopes will straighten out the tangle of existing vendor regulations.

“We need to make our laws clearer so that vendors can earn an honest living while co-existing with the pedestrians with whom they share our streets,” Gerson said. “Our sidewalks cannot be an obstacle course that daunts pedestrian movement and creates hazardous conditions.

“This is a reasonable effort to keep our sidewalks safe and livable and at the same time allow vendors to make a living.”

Gerson expects the City Council to hold hearings in the fall on the package of legislation by various councilmembers that would implement the proposed changes. The proposal would modify existing rules but not replace them. The measure would cover food and produce vendors, general-merchandise vendors, special preferences that exist for disabled veterans and the category of artists and vendors of material covered under the First Amendment — who zealously guard their right under the law to operate without any permits or licenses.

The proposal would establish rules for sharing vending space, the placement of vending stands and marking curbside vending space with paint or signs, in some cases authorizing a lottery wherever the Department Consumer Affairs or the police deem it necessary — with preference for First Amendment material and veterans. The proposal would also clearly spell out the art and First Amendment material that can be sold by vendors without a license.

But advocates for artist and First Amendment vendors are strongly against the proposals. Their response: “Enforce the existing law instead of imposing new laws.”

“Ludicrous,” was the word Robert Lederman used. Lederman is president of A.R.T.I.S.T. (Artists’ Resistance To Illegal State Tactics), an organization of artist street vendors, and the plaintiff in several lawsuits that resulted in the doctrine that First Amendment vendors do not have to be licensed — and that visual art is also protected free speech under the First Amendment as far as vending rules are concerned.

“A huge negative,” said Lawrence White, who sold his dance photos on the streets of Soho for 10 years. “The positive parts do not outweigh the bad — the proposed lottery, the displacement of legal vendors, the reclassification of artwork and space restrictions would cause serious harm to vendors,” he said.

White contends that the main problem is that the police and other agencies are unwilling or unable to enforce rules against the illegal vendors — unlicensed merchandise vendors and vendors who falsely claim to sell First Amendment-privileged items but who sell “bootleg” items that infringe copyrights.

Meanwhile, White said, police — with the help of private agents for trademark luxury manufacturers — make periodic sweeps of merchants who sell counterfeit pricey brands of watches and handbags. But “artists are totally left out of the protection of the law,” White said.

Lederman said his group does not believe artists should have no restrictions at all on where to display and sell their work.

“There are 60 pages of existing rules about where no one can sell anything,” he said. “No vending within 20 feet of a doorway, for example. You can go out and see any number of illegal vendors within 10 feet of a doorway,” he noted.

“Preposterous,” said Sean Sweeney, president of the Soho Alliance and a longtime critic of street vending, who nonetheless dismissed Gerson’s initiative.

“There are laws on the books that are enforceable, but police don’t enforce them,” Sweeney said. The alliance back in 1999 was able to get Prince and Spring Sts. between Broadway and West Broadway declared a no-vendor zone on Saturdays and Sundays, Sweeney said.

“Legal, illegal — you’re not supposed to sell anything there during that time,” Sweeney said. “They kept it clear for a while, but after 2001 the peddlers came back and they’re still there. What good are new laws when you don’t enforce the ones that exist? Enforcement first before new legislation,” he said.

Sweeney recalled he was at a recent meeting where Mayor Bloomberg and Police Commissioner Ray Kelly were the featured speakers and he asked them when the city would get rid of the peddlers in Soho.

“Bloomberg got involved in another conversation and Kelly said, ‘Wouldn’t you rather get rid of the murderers?’ I told him there were no murderers in Soho,” Sweeney recalled.

“I don’t think it will ever get passed,” Sweeney predicted of the Gerson proposal.

However, the councilmember insists his proposal goes a long way to improving enforcement. One section calls for the Police Department to increase the size of its vendor task force and create distinct units for denser vending areas, including Community Boards 1, 2 and 3, which together cover the area between the Battery and 14th St. The expanded task force would target efforts to end vending of stolen and counterfeit merchandise. The proposal also calls for training the appropriate city agency and the expanded vendor task force to identify counterfeit artwork or artwork sold in violation of copyright law, “the eradication of which shall be an integral mission of the vendor task force.”

Gerson’s proposal for a periodic lottery to assign vendor spaces was a special target of criticism by Lederman, who said it was enforceable only by licensing artist vendors or First Amendment vendors.

The proposal’s definition of First Amendment item includes religious material; written, audio or visual material, whether original or not; and artwork, whether original or not, including painting, photography, sculpture, calligraphy, collages or other depictions, representations or designs.

Nevertheless, the proposal says that no item would qualify for First Amendment protection if the medium used for transmittal or depiction of the message serves a “non-incidental functional purpose unrelated to the content of the message.”

Lederman said the functional purpose exclusion would be very troublesome.

“The line between function and content is very thin and great museum curators can’t separate them,” he said. “What if you’re making reproductions of ancient Greek vases? What if you are a potter?”

The Gerson initiative also lays out penalties for violation of rules on placement of vending stands or vending practices. For a third violation, any vendor license would be suspended for six months; in cases of First Amendment vendors, their right to vend could be suspended for six months for a second violation, and suspended for an additional six months for subsequent repeated offenses.

“I’ve never heard of losing the right of free expression for an offense,” Lederman said, “It’s ludicrous.”

The proposal also would expand vendor opportunities and empower the Department of Small Business Services to work with community boards to develop self-sustaining vendor markets, specifically within Council District 1 — Gerson’s district, which covers Lower Manhattan, the Lower East Side, Soho, Chinatown, Little Italy and the South Village. Those potential vendor markets would include one or more of the glass-enclosed pavilions planned for the East River esplanade, the New York City Transit site at Houston and Lafayette Sts., the open areas near the Staten Island Ferry Terminal, unused parts of Sara Roosevelt Park, a site at Lispenard St. near Canal St. and other locations.

“It’s not a perfect plan,” Gerson said. “There’s still room for improvement and change. That is what City Council hearings are for.”

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