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DUA, JOEL KAYE, BRYAN CLOSE, TENZIN WANGDU, JACK DIAMOND, BAYO IRIBHOGBE, ROBYN WOHL, GEORGE MORAN and ARTISTS UNINITED.
v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal agency); ADRIEN BENEPE (in his Official Capacity as the parks Commissioner) CITY OF NEW YORK (as a municipality); and MICHAEL BLOOMBERG (in his Official Capacity as the Mayor),
------------------------------------------------------------------3rd AFFIDAVIT IN SUPPORT OF REQUEST TO INTERVENE Under penalty of perjury, I hereby swear to the following: *A digital version of this faxed document has been uploaded to the internet in order to make the exhibit links easy to click on and read. It is at this address: http://www.scribd.com/doc/110184637/3rd-Amicus-to-Judge-Tingling Your Honor, I am the President of A.R.T.I.S.T. the advocacy group representing more than 2,000 NYC street artists, including most of those who vend in NYC Parks. I submit this 3rd affidavit in order to make the court aware of even more new developments in the Parks Department vs street artist controversy that the defendants are hiding from the court or deliberately misinforming the court about. 1. During the course of this lawsuit the defendants have eliminated many of the medallion spots. On 10/15/12 the defendants eliminated all 24 medallion vending spots for artists in front of the Metropolitan Museum of Art. These medallion spots will never be restored. They distributed a leaflet to the artists on 10/11/12 announcing the change. This document has the Parks Department leaflet and media coverage of the change: http://www.scribd.com/doc/109735881/Billionaires-evict-artists-from-Met-Museum-MetMedallions-Eliminated-2-Years-10-11-12 Medallion spots have also regularly been eliminated in Union Square Park, in Columbus Circle and on The High Line with the artists being replaced by corporate promotions, Mayoral art installations and concession vendors. These are 3 of many examples: Dance event “Step To The High Line” 6/18/2011 this event set up on High Line completely obstructing the artist medallion spots. It also caused a huge amount of congestion
2 in the tunnel. Video: http://www.youtube.com/watch?v=YMReIn10Cnk Document and details of dance event: http://www.scribd.com/doc/59458453/Step-to-the-High-Line-Festival-Showcase-the-HighLine Another High Line event took place on 6/28/2010 that caused all 5 medallions to be vacated by artists. http://www.scribd.com/doc/59458575/Announcement-of-Medallions-Relocated Also see: http://www.scribd.com/doc/59460489/Medallions-Removed-HL-8-12-2010 6/26/2011 Parks Dept sells a permit to NYC sponsored event to take over entire medallion area in Union Square Park where the 40 alternate medallion spots are for artists #1 usp - event vs 40 spots 6-26-11: http://www.youtube.com/watch?v=Kv7RvhAcM9s #2 usp - event vs 40 spots 6-26-11: http://www.youtube.com/watch?v=29f_wfVRYrM #3 usp - event vs 40 spots 6-26-11: http://www.youtube.com/watch?v=InXwqREMR4w 2. The timeline of events as described in numerous news articles proves that the Skyline ruling could not have been the cause of the change in enforcement concerning park performers who solicit for donations. The Skyline ruling was issued on February 23, 2012, as much as 3 months after the change in enforcement actually took place as described in numerous news reports. The Skyline ruling was not brought to either the Federal or State court’s attention by the defendants until after the Lederman plaintiffs raised it and only then because the defendants have to provide the court with some explanation for the policy change. Contrary to the claims of the defendants, the policy change was not due to a court ruling, but instead was an attempt to avoid a lawsuit by performers and to avoid bad publicity that was damaging the public image of Mayor Bloomberg as a patron of the arts. Therefore, the policy change clearly violates equal protection and is content based. http://www.scribd.com/doc/108766156/Timeline-Excerpt 3. Many of the performers, including those that the Park Commissioner for Enforcement Michael Dockett had summonses dismissed for, are vending CDs thus making the Skyline ruling completely irrelevant to the enforcement of the park rules. A performer vending CDS is unquestionably engaged in vending. Based on decades of my firsthand observation, many of the musical performers in parks vend CDS. These are just 3 of hundreds of recent videos on Youtube showing park performers vending CDs. http://www.youtube.com/watch?v=z382U0EXul8&feature=g-upl http://www.youtube.com/watch?v=UDkghkCkcok http://www.youtube.com/watch?v=zm6q5eKPWPQ The park rules require a performer who expects to cause more than 20 people to gather
3 and/or who is vending CDs to have a special events park permit, as described in this document from the parks website: http://www.nycgovparks.org/sub_opportunities/business_ops/vendex_forms/tua.pdf and in this letter from the NYC Corporation Counsel: http://www.scribd.com/doc/108762739/Neufeld-Letter-to-J-Sullivan-9-24-12-Legal3756724 In addition to the hundreds of performers who now occupy the areas where artists formerly sold, there are scores of chess gambling stands set up in Union Square Park each and every day. No enforcement action is taken against the performers or chess stands. Enforcement is only taken against artists. Chess gamblers/pay-for play in Union Square Park Recording made by Robert Lederman, 6/21/2011 $5 a game http://www.youtube.com/watch?v=664kxrMQn90&feature=youtu.be http://www.youtube.com/watch?v=Ok-15YEc5LQ&feature=related http://www.scribd.com/doc/100820503/Chess-Gambling-Union-Sq-Park http://www.scribd.com/doc/100759561/Ches-Players-UnionSqPark2011 http://www.scribd.com/doc/35128993/Union-Square-Park-Performers 4. Contrary to the defendant’s assertions, most performers cause a crowd of far more than 20 people to gather. Parks Inspector Robert Reeves has testified to this in his deposition in Lederman et al v Parks Department on pages 33-34. http://www.scribd.com/doc/100766204/Reeves-Depo None of the performers are being forced to get the required park permit for causing a crowd of more than 20 people to gather. In my 44 years of experience vending, only the least entertaining performer would expect to attract a crowd of fewer than 20 people. Many routinely cause a crowd of hundreds to gather as demonstrated by these videos. PEP officers watch these performers on a daily basis and do no enforcement. Colin Huggins and 600 pound baby grand piano in Washington Sq Park 3/27/12 http://www.youtube.com/watch?v=EHLtyFk4-7c Colin Huggins and piano in Washington Sq Park 4/6/12 http://www.youtube.com/watch?v=j_WrMbEOb5I Joe Mangrum does 50 foot wide sand paintings on the ground Union Square Park 12/28/09 http://www.youtube.com/watch?v=ZDvsneAv9zI Joe Mangrum May 8, 2012 Washington Square Park http://www.youtube.com/watch?v=FWEUlZYp34w Tic and Tac Washington Square Park 7/2/2010 with hundreds of people watching their performance, spread out over thousands of square feet. http://www.youtube.com/watch?v=-iqd6Ebuzaw Tic and Tac Washington Square Park 2/4/2012 (note that they are now performing inside the exact same fountain that artists must still be 50 feet from) http://www.youtube.com/watch?v=i6W9bdVSbUc Tic and TacWashington Square Park 7/7/2012 http://www.youtube.com/watch?v=lp0vwmIaFX0
4 Jazz band Washington Square Park 6/18/2012 (Note the date and the CDs for sale on the ground, the proximity to the arch, sitting on benches while performing, using amplification etc all in total violation of the revised rules which they are now exempt from) http://www.youtube.com/watch?v=zm6q5eKPWPQ Metropolitan Museum of Art street performers (one of the most used street performance spaces in NYC. Artists are crammed into the medallion spaces while performers are allowed to take over the entire front of the museum) http://www.youtube.com/watch?v=nw_SrkVbfI8 http://www.youtube.com/watch?v=JnEY4mBCmeM http://www.youtube.com/watch?v=hr4UsNvd3MU http://www.youtube.com/watch?v=oOdejKadpHo Battery Park performers http://www.youtube.com/watch?v=N3hZlC677gI http://www.youtube.com/watch?v=PtvYCsdieGo 5. The Park Enforcement Patrol (PEP) are still demanding a park permit from artists as a means of harassing them out of any vending spaces other than the medallions. A decade after the Federal Court struck down the parks artist permit in Lederman et al v Giuliani, the defendants are still routinely demanding one from artists as a means of discouraging them from using parks. These affidavits, a summons and this video show this consistent practice, which clearly amounts to contempt of court. PEP Sgt demands a park permit from Robert Lederman 10/14/12 http://www.youtube.com/watch?v=6r0OFVmItXU Artist Pat Christiano told he needs a permit http://www.scribd.com/doc/106916118/Pat-Christiano-Affidavit Artist Daniel DuVall told he needs a park permit http://www.scribd.com/doc/106808394/Artist-Told-Need-a-Permit-Affidavit Lederman issued summons on the High Line for no park permit 11/21/09 http://www.scribd.com/doc/110065370/RL-Summons-for-No-Permit 6. The park rules significantly differ from the General Vending Law [GVL]. This change further demonstrates that the revised rules were meant to eliminate artists from all NYC Parks. The GVL requires a sidewalk to be 12’ wide BEFORE a stand is set up in order for vending to take place on it. The park rules require a sidewalk to have a 12’ wide clearance AFTER a 3’ wide vending stand is set up, as clearly shown in the diagram from pg 1 of the Park Rules FAQ on the Parks Department website. 12’ + 3’ = 15’. Expressive Matter Vendors FAQ from Parks Department http://www.nycgovparks.org/sub_about/rules_and_regulations/rr_rules_regulations.html Or here: http://www.scribd.com/doc/33234963/Expressive-Matter-Vendor-Faq The defendants have repeatedly denied that the rule revision requires a 15’ wide sidewalk, despite their own FAQ document, and the text of the rules, clearly stating it. Since there are virtually no 15’ wide sidewalks in the NYC Park system, this one rules alone eliminates
5 99% of the claimed alternate venue. From 105-B section (5) of the revised park rules: “(5) No vendor shall vend anything whatsoever using a display stand that: (i) provides less than a twelve (12) foot wide clear pedestrian path measured from the display on the sidewalk or park path to the opposite edge of the sidewalk or park path, except that when there is street or park furniture on the pedestrian path the measurement must be taken from the display to two feet from the street or park furniture in order to determine whether there is less then a twelve (12) foot wide clear pedestrian path. From 20-465 of the GVL: http://codes.lp.findlaw.com/nycode/ADC/20/2/27/20-465 a. No general vendor shall engage in any vending business on any sidewalk unless such sidewalk has at least a twelve-foot wide clear pedestrian path to be measured from the boundary of any private property to any obstructions in or on the sidewalk, or if there are no obstructions, to the curb. Of the very few paths that are wide enough, such as the tree, monument and bench lined Poet’s Walk in Central Park, the rule requiring artists to be at least 5’ from trees, signs, street furniture or benches and 50’ from a monument, fountain or arch removes at least another 95% of the remaining alternate venue. One might need a quantum physicist to identify the miniscule remaining areas that might be legal for an artist to set up in within NYC Parks. Even the one path officials specifically named as an alternate venue, the path inside Strawberry Fields, is much less than 15’ wide and is therefore illegal to vend on. 7. The defendant’s claim that there are 28,000 acres of alternate venue available for artists is a transparent attempt to misinform the court and falsify the record. Factoring in the newly required 15’ width of a sidewalk; the restrictions on vending within 5’ of a bench, tree, sign, fence etc and within 50’ of a fountain or monument and the restriction on vending on grass, plantings or rock there is clearly no alternate venue. Wherever some small area that could be an alternate venue might still be present, the Park Enforcement officers routinely harass artists with false claims that they need a park permit. 8. The defendant’s aesthetics claims are being made a mockery of by corporate sponsored art installations that the Parks Department and the Mayor are placing near, and in some cases, right on top of monuments. The aesthetic issues raised halfway through this lawsuit by the City might appear legitimate if one had no firsthand experience of what the Parks department allows and encourages corporations to do in NYC Parks. For example, the City claims street artists have to be at least 50’ from any monument so that the tourists can better view them. At the same time,
6 corporate concessions are encouraged to set up right next to monuments and completely obstruct them. Some corporations are allowed to use the monuments themselves as advertising props. The Holiday Markets and Greenmarkets completely hide the monuments and some of their vendors use the monuments as part of their merchandise display. While they were trying to convince the court of their aesthetic purity and commitment to protecting the historical significance of Park monuments, the defendants sold a permit to use George Washington’s statue as a display stand for a satirical art installation. Tourist-in-chief installation in Union Square Park http://www.kickstarter.com/projects/leonreid/tourist-in-chief-public-art-installation-byleon-r http://www.leonthe4th.com/samples/Tourist%20In%20Chief.html Previous to that they sold a permit to a TV network to use numerous historical monuments for advertising a fantasy TV show about superhero police. Parks Department Exploits Public Monuments to Advertise NBCTV Show http://www.scribd.com/doc/46410640/Monuments-Used-for-Advertising-by-Parks Most recently the Parks Department completely obscured one of the most significant monuments they had claimed to be protecting the aesthetics of, the statue of Columbus in Columbus Circle. This months long art installation was personally funded by Mayor Bloomberg, as are many of the art installations the Parks Department has used to replace artists. It is located right next to one of the busiest subway entrances and it is expected to attract hundreds of thousands of people to the area. Discovering Columbus art installation Wall Street Journal describes the City “ridiculing” its monuments Wall Street Journal September 24, 2012 “A Monumental Problem” http://online.wsj.com/article/SB10000872396390444180004578016202789510278.html EXCERPT: “Like much of what the Public Art Fund promotes, "Discovering Columbus" can seem like campy fun—a million-dollar confection brought to you by the city's billionaire mayor. Yet the hijinks of "Discovering Columbus" come at the expense of the Columbus Circle monument itself, which must be kidnapped to take part in the party. The offer of the organizers to restore the monument at the end of the show—with Parks Department funds —implicitly acknowledges the disservice done during the run.” More coverage and photos: http://www.cbsnews.com/8301-201_162-57517036/living-room-exhibit-erected-aroundcolumbus-monument-in-new-york/ http://gothamist.com/2012/09/19/photos_up_close_and_personal_with_t.php#photo-13 In City Hall Park, which the City spent many millions of dollars renovating in an accurate historical style, the Mayor recently installed a giant inflatable ketchup bottle obstructing
7 the historic fountain and the tourist view of City Hall. http://ny.curbed.com/archives/2012/05/24/30foot_tall_inflatable_ketchup_bottle_lands_in_ city_hall_park.php http://www.dailymail.co.uk/news/article-2168686/NY-Mayor-Michael-Bloombergsverdict-speech-Who-wrote-s-t.html Even if one likes the Holiday Markets, the hundreds of Parks Department permitted food, Christmas tree and tee shirt concessions, the daily corporate promotions and the Mayor’s questionable installations of corporate sponsored public art, there can be no question that they dramatically affect park aesthetics far more than do 5 foot high by 8 foot long art displays. Visually compare the aesthetic effect of artist displays on Union Square Park to that of the Holiday Market in these 2 photos: http://www.scribd.com/doc/45986868/USP-Compare For the reasons stated above, and the evidence described in my 2 previous affidavits, the court should deny summary judgment to the defendants. There are numerous issues of fact in dispute. I would respectfully suggest to the court that they also deny the plaintiffs claims about the park rules discriminating against the aged, the handicapped and women and their claims that first come, first served is unconstitutional while granting the plaintiffs summary judgment on their equal protection, selective enforcement and First Amendment grounds. Respectfully Yours, Robert Lederman, President of A.R.T.I.S.T. 201 896-1686 email@example.com 49B Hasting Ave Rutherford, NJ 07070 10/16/12 c.c. Sheryl Neufeld, Jon Brooks, Jeffrey Shore, Kevin McGrath