Ruling Overturning Permit Requirement For Artists in NYC Parks:
Lederman et al v. Giuliani et al [Ruling overturning permit requirement for artists selling art in New York City Parks.] Lederman v. Giuliani [Robert Lederman, President of A.R.T.I.S.T. Artists' Response To Illegal State, Tactics robert.lederman@worldnet.att.net ] 2001 U.S. Dist. LEXIS 11567, * ROBERT LEDERMAN, KNUT MASCO, JACK NESBITT, WEI ZHANG, and A.R.T.I.S.T., Plaintiffs, -against- RUDOLPH GIULIANI, Mayor of the City of New York, in his individual and official capacities, CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, HOWARD SAFIR, Commissioner of the New York City Police Department, in his individual and official capacities, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN, Commissioner of the Department of Parks and Recreation, in his individual and official capacities, OFFICE OF COURT ADMINISTRATION OF THE CITY OF NEW YORK, and OFFICER HAYNES, OFFICER E. RYAN, SERGEANT BROWN and SERGEANT ROSADO, in their individual and official capacities, and John Doe Nos. 1-10, Defendants. DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH, HENRY BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO, NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI WANG, HUAN WANG, and ALEXANDER VERSTOV, Plaintiffs, -against- RUDOLPH GIULIANI, Mayor of the City of New York, in his individual and official capacities, CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, HOWARD SAFIR, Commissioner of the New York City Police Department, in his individual and official capacities, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN, Commissioner of the Department of Parks and Recreation, in his individual and official capacities, SERGEANT ROSADO, in his individual and official capacity, ALEXANDER R. BRASH, in his individual and official capacity, and John Doe Nos. 1-10, Defendants. 98 Civ. 2024 (LMM), 98 Civ. 2400 (LMM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2001 U.S. Dist. LEXIS 11567 August 7, 2001, Decided August 10, 2001, Filed DISPOSITION: [*1] Defendants' motion for summary judgment granted in part and denied in part and plaintiffs' cross-motion for partial summary judgment granted. COUNSEL: For ROBERT LEDERMAN, KNUT MASCO, JACK NESBITT, WEI ZHANG, A.R.T.I.S.T., plaintiffs (98-CV-2024): Andrew T. Miltengerg, Nesenoff & Miltenberg, LLP, New York, NY. For RUDOLPH GIULIANI, CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, HOWARD NEW YORK CITY POLICE COMMISSIONER, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN, OFFICER E. RYAN, SERGEANT ROSADO, defendants (98-CV-2024): Robin Binder, Michael D. Hess, Corporation Counsel, City of New York, New York, NY. For OFFICER HAYNES, SERGEANT BROWN, defendants (98-CV-2024): Nancy L. Eisenstein, Dennis C. Vacco, Attorney General of the State of N.Y., New York, NY. For DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH, HENRY BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO, NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI WANG, HUAN WANG, ALEXANDER VERSTOV, GARY BERMAN, ROBERT BERY, LYNNE A. CRADDOCK, PATRICK CHRISTIANO, JESSICA LEAMAN, JOACHIM LOMBARD, MA KE LU, DAVID MCDERMOTT, JACKIE GARRICK-WALDMAN, HOWARD WALDMAN, plaintiffs (98-CV-2400): [*2] Paul A. Shneyer, Paul A. Shneyer, P.C., New York, NY. For DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH, HENRY BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO, NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI WANG, HUAN WANG, ALEXANDER VERSTOV, plaintiffs (98-CV-2400): Carol Novack, New York, NY. For CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, defendants (98-CV-2400): Robin Binder, Paul A. Crotty, Corporation Counsel of the City of NY, New York, NY. JUDGES: LAWRENCE M. McKENNA, U.S.D.J. OPINIONBY: LAWRENCE M. McKENNA OPINION: MEMORANDUM AND ORDER MCKENNA, D.J. Before the Court are defendants' motion for summary judgment and plaintiffs' cross-motion for partial summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part and plaintiffs' cross-motion is granted. I. Background Plaintiffs are visual artists and an organization comprised of approximately 400 artists, Artists' Response to Illegal State Tactics ("A.R.T.I.S.T."), who display and sell their artwork on the streets of New York City, including the area in front of the Metropolitan Museum of Art ("the Met"). Since March 1, 1998 art [*3] vendors selling their work without permits in front of the Met have been ticketed and arrested by officers of the New York City Police Department ("the NYPD") and the Parks Department and had their art confiscated. Plaintiffs cross-move for partial summary judgment that Title 56 of the Rules of the City of New York ("R.C.N.Y.") § 1-05(b), promulgated by the New York City Department of Parks and Recreation ("the Parks Department"), prohibiting vendors to operate without a permit either within the parks or on territory which is under the jurisdiction of the Parks Department, including the street and area abutting the Met, is unconstitutional under the First and Fourteenth Amendments of the United States Constitution, U.S. Const. amend. I, XIV, and Article I, sections Eight and Eleven of the New York State Constitution. N.Y. Const. art. 1, §§ 8, 11. Defendants oppose plaintiffs' cross-motion for partial summary judgment and move for summary judgment on plaintiffs' claim that statutes prohibiting the defacing or marking of sidewalks and public property, specifically New York City Administrative Code §§ 10-117 and 19-138, and 56 R.C.N.Y. § 1-04(a) ("the defacement provisions"), are unconstitutional [*4] under the First Amendment and Article 1, § 8 of the New York State Constitution as applied to the use of chalk and selectively enforced in violation of the Fourteenth Amendment and Article 1, § 11 of the New York State Constitution. Plaintiffs, particularly Robert Lederman ("Lederman"), have repeatedly been arrested for printing on the sidewalks with chalk as a method of protest. Finally, the City of New York ("the City") seeks summary judgment dismissing Lederman's 28 U.S.C. § 1983 claim that he was improperly arrested for disorderly conduct in front of The Cooper Union For the Advancement of Science and Art on May 27, 1998 ("the Cooper Union Arrest"). II. Legal Standard Summary judgment should be granted only "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). [*5] Once the moving party establishes a prima facie case demonstrating the absence of a genuine issue of material fact, the non-moving party has the burden of presenting "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), and "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). III. Discussion A. Parks Department Permit Requirement Section 1-05(b) makes it illegal to vend within the jurisdiction of the Parks Department without a permit. Plaintiffs seek a permanent injunction on First Amendment or Equal Protection grounds preventing the City from enforcing § 1-05(b) against vendors dealing in artwork ("art vendors"). In addition to surviving constitutional scrutiny under the First Amendment, § 1-05(b) must also be consistent with the statues and legislation that New York City has promulgated to govern the [*6] behavior and location of street vendors. The latter argument was considered in People v. Balmuth, 178 Misc. 2d 958, 681 N.Y.S.2d 439 (Crim. Ct. 1998), aff'd July 31, 2001 N.Y.L.J. 21 (App. Term 2001), where the court found § 1-05(b) as applied to art vendors selling art in front of the Met to violate the legislative intent of the relevant provision of the New York City Administrative Code. Plaintiffs argue that this Court should give preclusive effect to Balmuth, which arose out of the criminal prosecution of several of the same art vendors who are plaintiffs in the present case for selling their art in front of the Met without a permit in violation of § 1-05(b). Although this Court is unable to give the Balmuth decision preclusive effect, the Court finds Balmuth's analysis of the relevant vending statutes to be highly persuasive. 1. Balmuth Does Not Have Issue Preclusive Effect Issue preclusion or collateral estoppel is intended to prevent re-litigation of the same issue between parties who already have had an opportunity to try the issue in court. Federal courts must give the same preclusive effect to state court decisions [*7] as the courts of that same state would. 28 U.S.C. § 1738. This Court, therefore, must analyze what preclusive effect another New York State court would give to the Balmuth decision. Under New York State law several requirements must be met before issue preclusion can be applied. There must be "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action" and "a full and fair opportunity to contest the decision now said to be controlling." Wilder v. Thomas, 854 F.2d 605, 620 (2d Cir. 1985) (quoting Schwartz v. Pub. Adm'r of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725 (1969)). The "full and fair opportunity" requirement demands that the judgment to be given preclusive effect have been "decided against that party or those in privity." Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984). The parties in Balmuth and this case are not the same. In Balmuth, the prosecuting party is the People of the State of New York. In the present case, plaintiffs have sued the City of New York, the NYPD, the Parks Department, [*8] and several other City agencies, as well as officials and police officers in their individual capacities. n1 Before plaintiffs can assert issue preclusion successfully, they must show that the prosecutor in the Balmuth matter, the People of the State of New York, as represented by the New York County District Attorney's office, is in privity with the defendants in the present action. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 In addition, not all plaintiffs in the present case were parties to Balmuth. n2 In Balmuth, Judge Billings addressed whether this Court's order denying a preliminary injunction in this matter had preclusive effect and found privity between the City agencies in this case and the prosecution in Balmuth. 681 N.Y.S.2d at 442. However, the Balmuth court's determination cannot be given preclusive effect. In order to have issue preclusive effect, a decision must have been necessary to the court's judgment. Wilder, 854 F.2d at 620. The issue decided also must have been material to the first action and essential to the decision. Jackson v. Ramundo, 1997 U.S. Dist. LEXIS 17035, No. 95 Civ. 5832, 1997 WL 678167, at *4 (S.D.N.Y. Oct. 30, 1997) (citing Fletcher v. Atex, Inc., 68 F.3d 1451, 1457 (2d Cir. 1995)). New York law holds that denial of a preliminary injunction is not an adjudication on the merits, and therefore the prior order in this case could not be given preclusive effect by the Balmuth court. 681 N.Y.S.2d at 442. Because Balmuth's finding of privity was ultimately irrelevant, and therefore not material, necessary, or essential to the decision, it cannot be given preclusive effect. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9] There are several factors to consider when determining whether parties are in privity. One is whether "the connection between the parties is such that the interests of the nonparty can be said to have been represented in the prior proceeding." Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244, 519 N.Y.S.2d 793, 514 N.E.2d 105. However, a non-party may also be bound by issues determined in a prior action if it "controls or substantially participates in the control of the representation on behalf of a party." United States v. Davis, 906 F.2d 829, 833 (2d Cir. 1990). Although the pleadings suggest that the Parks Department had a significant role in prosecuting Balmuth, (Pls.' Supp. Mem. at 5; Ex. 1), a number of cases have held that substantial control is not enough to create privity between the District Attorney and other municipal entities. In Brown v. City of New York, 60 N.Y.2d 897, 470 N.Y.S.2d 573, 458 N.E.2d 1250 (1983), the Court of Appeals held that "the city and the District Attorney are separate entities and . . . do not stand in sufficient relationship to apply the doctrine." 470 N.Y.S.2d at 574. The Brown Court did suggest [*10] that there might be a situation where the two entities would stand in a sufficient relationship to create privity. Id. However, no court applying Brown to facts similar to those in the instant case has found privity. In Taveras v. City of New York, 222 A.D.2d 338, 635 N.Y.S.2d 608 (App. Div. 1995) and Saccoccio v. Lange, 194 A.D.2d 794, 599 N.Y.S.2d 306 (App. Div. 1993), the Appellate Division interpreted Brown to hold that the District Attorney's office and the City of New York (and other municipal entities) do not stand in sufficient relationship to each other to create privity and allow issue preclusion. Taveras, 635 N.Y.S.2d at 608-09; Saccoccio, 599 N.Y.S.2d at 306; see also Doe v. City of Mt. Vernon, 156 A.D.2d 329, 548 N.Y.S.2d 282, 283 (App. Div. 1989); People v. Morgan, 111 A.D.2d 771, 490 N.Y.S.2d 30, 31 (App. Div. 1985); Nelson v. Dufficy, 104 A.D.2d 234, 482 N.Y.S.2d 511, 513 (App. Div. 1984); People v. Batista, 158 Misc. 2d 985, 602 N.Y.S.2d 774, 776-77 (Sup. Ct. 1993). Therefore, the Court holds that there is no privity between [*11] defendants in the immediate case and the prosecution in Balmuth, and thus, Balmuth cannot be given preclusive effect. Thus, this Court must address whether the enforcement of the Parks Department regulation § 1-05(b) against art vendors conflicts first with New York City Administrative Code, Title 20, subchapter 27, §§ 20-452 through 20-474.3, and, second, if necessary, with the right to free speech and equal protection found in the New York State and United States Constitutions. 2. Standard of Review for Regulations Promulgated by Administrative Agencies Administrative agencies, including the Parks Department, "can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute." Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 429, 332 N.E.2d 303 (1975). On the other hand, "it is settled law that an agency's interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness." Seittelman v. Sabol, 91 N.Y.2d 618, 674 N.Y.S.2d 253, 256, 697 N.E.2d 154 (1998) (citation omitted). Where "the question [*12] is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency." Id. (quoting Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 426 N.Y.S.2d 454, 459, 403 N.E.2d 159 (1980)). "In such a case, courts are 'free to ascertain the proper interpretation from the statutory language and legislative intent.'" Id. (quoting In re Gruber, 89 N.Y.2d 225, 652 N.Y.S.2d 589, 593, 674 N.E.2d 1354 (1996)). 3. The Relevant Statutes Governing Vendors All vendors are governed by New York City Administrative Code, Title 20, subchapter 27, §§ 452 through 474.3. Although there are several provisions that exempt vendors dealing in newspapers, periodicals, books, pamphlets and other similar written matter ("book vendors") from permit requirements, subchapter 27 does not similarly exempt art vendors. Administrative Code § 453 requires all vendors in New York City to obtain a license, but exempts book vendors pursuant to Local Law of the City of New York No. 33 (1982) ("Local Law 33"). Administrative Code [*13] § 465(j) imposes an additional restriction on all vendors operating in Parks Department territory: No general vendor shall vend within the geographical areas under the jurisdiction of the department of parks and recreation unless written authorization therefor has been obtained from the commissioner of such department, but nothing therein contained shall exempt any general vendor from obtaining a license in accordance with this subchapter. However, this permit requirement is also subject to an exemption for vendors of written material, set out in Administrative Code § 473, which states that: General vendors who exclusively vend written matter are exempt from . . . subdivision j of section 20-465, except that nothing herein shall be construed to deprive the commissioner of the department of parks and recreation of the authority to regulate the vending of written matter in a manner consistent with the purpose of the parks and the declared legislative intent of this subchapter. Thus, vendors of written material are exempt from all licensing or permit requirements, except that if they vend within the jurisdiction of the Parks Department, they may be subject [*14] to regulations "consistent with the purpose of the parks and the declared legislative intent" of subchapter 27. In Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251, 138 L. Ed. 2d 174, 117 S. Ct. 2408 (1997), the Second Circuit addressed whether the City could require art vendors to obtain a license to sell their goods under Administrative Code § 453. The Bery Court determined that "visual art is as wide-ranging in its depiction of ideas and emotions as any book, treatise, pamphlet or other writing" and held that artwork was entitled to the same First Amendment protection as written material. Id. at 695. Sale of such protected material is also protected by the First Amendment, id. at 695-96 (citing Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5, 768, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988)), and under the Equal Protection Clause of the Fourteenth Amendment art vendors and book vendors must be treated the same. See 97 F.3d at 699. Following Bery, therefore, art vendors are subject to only those vending restrictions which are applicable to book vendors. [*15] Thus, in order for any Parks Department regulation affecting the ability of art vendors to vend to be valid, it must meet both conditions set forth in Administrative Code § 473, consistency with the purpose of the parks and the legislative intent of subchapter 27. 4. On Its Face, 56 R.C.N.Y. § 1-05(b) Is Valid Because It Does Not Necessarily Impose Licensing Requirements on Art Vendors Section 1-05(b) was enacted by the Parks Department pursuant to New York City Charter § 533(a)(9) which grants the Commissioner of the Parks Department the authority "to establish and enforce rules and regulations for the use, government and protection of public parks and of all property under the charge or control of the department." N.Y. City Charter § 533(a)(9). New York City Charter § 533(a)(5) places "all streets and avenues lying within any park . . . or within a distance of three hundred fifty feet from the outer boundaries thereof" within the jurisdiction of the Parks Department, which includes the Met. N.Y. City Charter § 533(a)(5). Section 1-05(b) requires all vendors operating on Parks territory to obtain a permit: No person in any park, or street adjacent to or [*16] abutting a park (including all public sidewalks of such abutting streets) shall sell, offer for sale, hire, lease or let anything whatsoever, except under and within the terms of a permit, or except as otherwise provided by law. By their terms, both Administrative Code § 465(j) and § 1-05(b) impose licensing requirements on all vendors operating in Parks Department territory. n3 As applied to vendors who do not deal in books or art, there is no conflict between subchapter 27 and § 1-05(b). As a result, § 1-05(b) is valid as enforced against most vendors. Further, because § 1-05(b) does allow vending without a permit "as otherwise provided by law," the regulation is not automatically in conflict with the statutory exemptions for book vendors and, pursuant to Bery, art vendors contained in Administrative Code §§ 453 and 473. Any statutory provision excusing book and art vendors from the permit requirement would fall under the "otherwise provided by law" clause. Therefore, as stated by the Balmuth court, "the issue . . . is specifically whether the regulation is lawful as enforced against [plaintiff art vendors], in requiring them to have a permit to sell or offer for [*17] sale their artwork . . . on City parkland along Fifth Avenue." 681 N.Y.S.2d at 443. Thus, the Court must examine whether the enforcement of a licensing requirement pursuant to § 1-05(b) against art vendors is "consistent with the purpose of the parks and the declared legislative intent" of subchapter 27 as necessary under Administrative Code § 473. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 By "licensing," the Court includes any license, permit, or authorization requirement. Although Local Law 33 uses the words "licensing requirements" and § 1-05(b) uses the word "permit," there does not appear to be any difference or distinction in the use of the words, and they are effectively interchangeable. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 5. The Enforcement of 56 R.C.N.Y. § 1-05(b) Against Art Vendors Violates Administrative Code § 473 Local Law 33 provides the legislative intent underlying Administrative Code § 473 specifically and subchapter 27 generally, with respect to the regulation of book vendors in New York City. The heading of Local Law 33 is: To amend [*18] the administrative code of the city of New York, in relation to the exemption from licensing of vendors of newspapers, periodicals, books, pamphlets and other similar written matter, and the regulation of such vendors. L.L. 33/1982. The New York City Council made the following legislative declaration, in enacting Administrative Code § 473: 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. The council further finds and declares that general vendors who exclusively vend written matter should be free from licensing requirements. It is further found and 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. Id. § 1 (emphasis added). Thus, the legislative intent is that book vendors "should be free from licensing requirements," id., without provision for exceptions. If any [*19] uncertainty remained, conditions and exceptions regarding the regulation of book vendors in other ways emphasize the unconditional nature of the prohibition on licensing requirements. The first sentence of Local Law 33, § 1 states that the public health, safety and welfare are the relevant considerations when placing restrictions on book vendors. Id. The next sentence, however, identifies "licensing requirements" as an impermissible form of restriction, without exception for public health, safety and welfare concerns. Id. Thus, although time, place and manner restrictions may be imposed to benefit public health, safety and welfare, licensing requirements are never permissible on book vendors. As explained above, this legislative intent and regulatory scheme must apply equally to art vendors and book vendors. See Bery, 97 F.3d at 699. As a result, an exemption for both book and art vendors must be read into the "otherwise provided by law" clause in § 1-05(b). Section 1-05(b)'s permit requirement cannot be legally enforced against art vendors, or indeed, against book vendors. Having determined that such enforcement is not valid under existing New York City [*20] statutes, it is not necessary for this Court to consider the validity of the licensing requirement under either the United States or New York State Constitutions. Plaintiffs' cross-motion for partial summary judgment is granted. B. The Defacement Provisions Plaintiffs make two claims with respect to the defacement provisions. n4 First, that they violate the First Amendment and Article 1, § 8 of the New York State Constitution because they are "prior restraints on constitutionally protected speech" which are "overbroad and vague," particularly as applied to the use of chalk. (Am. Compl. PP 179-85, 190-91.) Second, that plaintiffs' arrests for the violation of the defacement provisions evidence a policy of selective enforcement which has created "favored and unfavored categories of speakers" (Am. Compl. PP 186-89, 192-197) in violation of the Fourteenth Amendment and Article 1, § 11 of the New York State Constitution. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 There are three provisions at issue. Administrative Code § 10-117 provides, in relevant part: a. No person shall write, paint or draw any inscription, figure or mark of any type on any public or private building or other structure or any other real or personal property owned, operated or maintained by a public benefit corporation, the city of New York or any agency or instrumentality thereof or by any person, firm, or corporation, or any personal property maintained on a city street or other city-owned property pursuant to a franchise, concession or revocable consent granted by the city, unless the express permission of the owner or operator of the property has been obtained. . . . f. Any person who violates the provisions of this section shall be guilty of a class B misdemeanor punishable by a fine of not more than five hundred dollars or imprisonment of not more than three months, or both. g. In addition to the criminal penalties imposed pursuant to subdivision f of this section, a person who violates the provisions of subdivision a, b, c or d of this section shall be liable for a civil penalty of not more than five hundred dollars for each violation which may be recovered in a proceeding before the environmental control board. Such proceeding shall be commenced by the service of a notice of violation returnable before such board. Administrative Code § 19-138 provides, in relevant part: b. Defacing. Except as otherwise provided by law, it shall be unlawful for any person to deface any street by painting, printing or writing thereon, or attaching thereto, in any manner, any advertisement or other printed matter. 56 R.C.N.Y. § 1-04(a) provides: (a) Destruction or abuse of property and equipment. No person shall injure, deface, alter, write upon, destroy, remove or tamper with in any way, any real or personal property or equipment owned by or under the jurisdiction or control of the [Parks] Department. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*21] Plaintiffs' response to defendants' summary judgment motion on the selective enforcement claim is a request for a continuance of discovery. Plaintiffs allege that there was an arrangement between the parties that discovery on issues other than the Parks Department permit requirement would be postponed. (Fierman Decl. PP 4-43; Shneyer Decl. PP 3-5.) Defendants do not deny that such an agreement was made. Because the manner in which the provisions were enforced may create a genuine issue of material fact following discovery, the Court denies defendants' motion for summary judgment on the claim of selective enforcement of the defacement provisions and grants plaintiffs' request for a continuance of discovery. With respect to plaintiffs' claim that the defacement provisions violate the First Amendment and Article 1, § 8, defendants argue that the defacement provisions are valid, content-neutral requirements that are narrowly tailored to serve a significant government interest and allow ample alternative channels for communication. (Defs.' Mem. at 25.) Defendants claim that the provisions "make no distinction based on the content of any written expression" and are thus content-neutral [*22] on their faces. (Id.) They also argue that the protection of public property from damage and visual blight is a significant government interest, and that the manner of defacement is irrelevant. (Id.) Plaintiffs do not respond to defendants' argument. Even if, read broadly, plaintiffs' argument for a discovery continuance was intended to delay summary judgment on the constitutionality of the defacement provisions, the argument would fail. As the facial validity of the defacement provisions is a matter of law, not of fact, additional discovery would have no bearing on this matter. Therefore, defendants' motion for summary judgment is granted on plaintiffs' free speech claim with respect to the defacement provisions. C. The Cooper Union Arrest For the reasons described above with respect to the defacement provision arrests, the Court also grants a continuance of discovery in the matter of the Cooper Union arrest. Lederman, having alleged that he was improperly arrested as a result of being "targeted" by the Giuliani Administration (Am. Compl. P 198), should have an opportunity to seek discovery on this matter. IV. Conclusion Defendants' motion for summary judgment [*23] is denied and plaintiffs' cross-motion for summary judgment is granted with respect to the enforcement of 56 R.C.N.Y. § 1-05(b). Defendants' motion for summary judgment is granted with respect to plaintiff's free speech claim regarding the defacement provisions and denied with respect to plaintiffs' equal protection claims arising from the Cooper Union arrest and the arrests pursuant to the defacement provisions. Plaintiffs are granted an extension of discovery until October 31, 2001 regarding the arrests. SO ORDERED. DATED: August 7, 2001 LAWRENCE M. McKENNA U.S.D.J. Citation: 2001 US Dist Lexis 11567
