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CHRISTOPHER MASTROVINCENZO vs THE CITY OF NEW YORK

CHRISTOPHER MASTROVINCENZO vs THE CITY OF NEW YORK

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Published by: Street Vendor Project on Aug 21, 2009
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK--------------------------------------XCHRISTOPHER MASTROVINCENZO :(a.k.a. MASTRO), and :KEVIN SANTOS (a.k.a. “NAC” OR “NAK”), ::Plaintiffs, :04 Civ. 412 (VM):- against - :
DECISION
:
 AND ORDER 
THE CITY OF NEW YORK; :MICHAEL R. BLOOMBERG, Mayor; :THE NEW YORK CITY DEPARTMENT OF :CONSUMER AFFAIRS; :COMMISSIONER GRETCHEN DYKSTRA; :THE NEW YORK CITY POLICE DEPARTMENT; :COMMISSIONER RAYMOND W. KELLY; :THE DEPARTMENT OF PARKS AND :RECREATION OF THE CITY OF NEW YORK; :and COMMISSIONER ADRIAN BENEPE, ::Respondents. :--------------------------------------X
 VICTOR MARRERO, United States District Judge
In this motion for a preliminary injunction, plaintiffsChristopher Mastrovincenzo (“Mastrovincenzo”) and Kevin Santos(“Santos,” and collectively “Plaintiffs”) challenge theapplication to them of the licensing requirement contained inthe General Vendors Law, New York City Administrative Code §20-452 etseq. (the “Ordinance” or the “General Vendors Law”).Plaintiffs offer for sale in public places without a licensearticles of clothing that they individually decorate with textand images in what they label a graffiti style. Due to alimit on the number of permits by the Department of ConsumerAffairs (“DCA”) pursuant to the Ordinance, Plaintiffs havebeen unable to obtain a license to operate as street vendors
 
2in New York City. Mastrovincenzo has been arrested twice andSantos has been told to shut down his display for operating asa vendor without a license.Plaintiffs have moved for a preliminary injunction toprevent the City of New York (the “City”), the DCA, the NewYork City Police Department, the Department of Parks andRecreation, and the mayor and the respective departmentcommissioners (collectively, the “Defendants”) from enforcingthe licensing requirement against them on the grounds that itviolates the First Amendment to the United StatesConstitution, a permanent injunction that the City and DCApreviously entered into following other litigation raisingsimilar issues, and the New York State Constitution. Becausethe Court agrees that Plaintiffs are likely to succeed on themerits of their claims, the Court grants Plaintiffs’ motionfor a preliminary injunction.
I. BACKGROUND
The General Vendors Law regulates the sale of goods andservices, other than food, in the public spaces of the City ofNew York. The Ordinance requires any person who “hawks,peddles, sells, leases or offers to sell or lease, at retail”any non-food goods or services in a public space in the Cityof New York to obtain a general vendor’s license from the DCA.
 
1
Honorably discharged members of the United States armed forces are alsoexempt from the license requirement. N.Y. Gen. Bus. Law § 32 (McKinney1994).
2
For example, vendors may not: operate their business on any sidewalkthat is less than twelve feet wide; occupy more than eight linear feet ofpublic space parallel to a curb; place their pushcarts or display standswithin twenty feet of an entrance to any building, theater, arena or otherplace of public assembly; or occupy a bus stop or taxi stand or cover anyventilation grill or subway access. SeeAdmin. Code §20-465.
3Admin. Code §§20-452, 453. The Ordinance exempts from thelicense requirement any person who vends exclusively“newspapers, periodicals, books, pamphlets or other similarwritten material”.
1
Id.§20-453. A license costs two hundreddollars and is valid for one year. See id. §20-454. Thelicensee may apply for renewal of the license each year, andthe DCA commissioner must renew the license provided that theapplicant complies with all administrative requirements, suchas payment of taxes and the renewal fee, and the licensee hasnot committed any violation which could serve as the basis fora revocation of the license. Seeid. §§20-457, 459. TheOrdinance places restrictions on the size and locations ofvendors’ displays.
2
Seeid. §20-465. These restrictionsoperate on all vendors, regardless of whether they arerequired to possess a license. See id. §§20-452(b), 465.The Ordinance caps the number of general vendor’slicenses available citywide at 853, the number of licensesthat were in effect on September 1, 1979. See id. §20-459(a); New York City Local Law No. 50 (1979). The waiting

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