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The Street Vendor Opportunity Bill A Proposal to Increase Economic Development and Promote Small Business

The Street Vendor Opportunity Bill

A Proposal to Increase Economic Development and Promote Small Business Growth by Revising NYC Laws on Street Vending


Since 1866, when the first peddlers parked their pushcarts on Hester Street on the Lower East Side, street vendors have been a hallmark of New York City. 1 Wave after wave of immigrants and entry-level entrepreneurs have used vending as a steppingstone to success on their way to realizing the American Dream. 2 The primarily Jewish and Italian peddlers of yesteryear have today been replaced by Egyptians, Chinese, Mexicans, African-Americans, and many others but vendors continue to be a symbolofourcity’sambitionandculturalvibrancy. 3 For the millions of loyal customers who patronize them daily for their friendliness, convenience and low prices, street vendors are also an indispensable part of life in our city. 4

As long as there have been vendors in New York, however, merchants and real estate owners have sought to drive them off the streets. 5 Over the past twenty years, these business interests have united into powerful Business Improvement Districts (BIDs), which have campaigned to limit vending to unprecedented levels. Big businesses, many of which can trace their roots to the street, have pulled up the ladder behind them. 6 At

1 See Suzanne Wasserman, The GoodOldDaysofPoverty:TheBattleOvertheFateofNewYorkCity’sLowerEast

Side During the Depression, May 1990, at 168 (Attachment 1).

See Balancing Safety and Sales on City Streets, New York City Department of Consumer Affairs, February 1991, at 4 (Attachment 2); Karen Kreps, The Road to Riches: Success Can Start in the Street, N.Y. Daily News, January 6,

1981 (Attachment 3).

See Deborah Sontag, Unlicensed Vendors, Unfettered Dreams, N.Y. Times, June 14, 1993 (Attachment 4); Peter Blauner, Out of Africa: the Senegalese Peddlers of New York, New York Magazine, February 16, 1987 (Attachment 5). Street vending has become a source of economic self-sufficiency and black pride in the African American community. See Regina Austin, “AnHonestLiving”:StreetVendors,Municipal Regulation, and the Black Public Sphere, 103 Yale L.J. 2119 (1994) (Attachment 6).

4 A wealth of evidence demonstrates that, unlike big businesses, everyday New Yorkers love street vendors. A 2001 survey of 834 New Yorkers found such wide broad support for street vendors that the vast majority of respondents were opposed to police enforcement against them. See Crime, Police and the Community: A report by the Citizens



Crime Commission of New York City, July 2001 (available upon request); Joseph Dolman, Rudy’sWaronVendorsIs

a Street Crime,Newsday,June23,1999(Attachment7)(describingthediverserangeofNewYorkers,“from CEOsin

their $2,000 suits to bike messengers in their spandex,”wholineupforcoffee from a vendor every morning); Trine Glever, Midtown Munchers, N.Y. Daily News, August 24, 1994 (Attachment 8) (interviewing New Yorkers about

vendors); Wendell Jamieson, Golden Jeered in Street Vendor Raid, Newsday, July 24, 1991 (Attachment 9) (describing how New Yorkers came the defense of the vendors during a raid by Brooklyn Borough President Howard Golden); Dave Goldiner, City ban to cart off vendors,N.Y.DailyNews,May24,1998(Attachment10)(“ManyNew

Yorkers consider the carts an irreplaceablepartoftheirlunchtimeroutine”).

See Daniel Bluestone, ThePushcartEvil:Peddlers,MerchantsandNewYorkCity’sStreets,1890-1940, Journal of


Urban History, November 1991 (Attachment 11); The Good Old Days of Poverty, supra note 1.

See New York in Transition: Itinerant Peddlers and Vendors Everywhere, New York City Department of Business



start vending) (available upon request); Sam Osman, Will a Peddler Be the Next R.H. Macy?, Newsday, August 17,

1993 (Attachment 12).

their urging, the City Council has restricted vending licenses, declared vast areas of the city off-limits to vending, and raised vending fines to exorbitant levels. So many obstacles have been put in place that street vending is no longer a viable path toward upward economic mobility. 7

The Street Vendor Opportunity Bill 8 will promote economic growth and small business development by establishing a system whereby hard-working people can once again make an honest living on the street. First, the Bill will revise the licensing cap to bring into the system those vendors who are already on the street, but without licenses. This will increase tax and licensing revenue to the city, reduce sidewalk congestion, and ease the enforcement burden on the NYPD. Second, the Bill will establish a sensible and objective system, in line with current city standards, for determining which sidewalks are too congested to allow vending. Finally, the Bill will adjust the penalty schedule to make the fines paid by vendors more in line with fines paid by other small businesses.

License Restrictions

At the urging of merchant associations and chambers of commerce, in 1979 and 1983 the City Council put limits, for the first time in New York City history, on the number of vending licenses and permits issued. 9 Food vending permits were reduced drastically, from almost 12,000 to only 3,000 despite the fact that an estimated 25,000 pushcarts onceroamedourcity’sstreets. 10 Merchandise licenses were arbitrarily capped at 853 despite the fact that other large cities such as Los Angeles, Chicago, and Washington, D.C. do not have license ceilings. 11 The vending community, which has always been made up primarily of recent immigrants and people of color, did not have enough political influence to oppose this dramatic assault on their livelihoods. 12

These artificial ceilings have created such a long waiting list that that the Department of Consumer Affairs (DCA) has not even taken new names since 1991. The limits have also been counterproductive. While the big businesses that fought for the ban sought to reduce competition from vendors, many studies have since shown that vendors actually help the stores by drawing shoppers to commercial districts. 13 Additionally, rather than

7 See Mariam Sami, VendorsCan’tBuyASpot, N.Y. Times, August 24, 1997 (Attachment 13) (quoting a vendor who had been driven from his vending spot and was planning togobacktoMorocco:“Iam anAmericancitizenintheland ofopportunity,butthereisn’tany”).

See Street Vendor Opportunity Bill (Attachment 14) 9 See Local Law 50 of 1979 (Attachment 15), Local Law 17 of 1983 (Attachment 16). Both laws were proposed by the business community and passed at their urging. See Jill Smolowe, Merchants Propose a New Ban on Street Peddlers, N.Y. Times, December 1, 1980 (Attachment 17); Memo from Susan Heilbron to Mayor Edward Koch re:

Local Law 50 of 1979, September 7, 1979(Attachment18)(“facedwithoverwhelmingsupportgivenbynumerous merchantandcivicgroups,theBillpassed”).

See Barbara Ross, City & Vendors Cook up Plans to Restore Carts, N.Y. Daily News, November 27, 1994, (Attachment 19); New York Food Museum, (Attachment 20).

11 See Balancing Safety and Sales on City Streets supra note 2 at Attachment 2. Also, United States military veterans arenotsubjecttothecity’slicensingcap.SeeNY General Business Law, Article 4, § 32 (Attachment 21).

12 For example, at a public hearing for Local Law 50 of 1979, not one vendor spoke out against the bill. See Transcript of Public Hearing on Local Laws held before Mayor Edward I. Koch, September 7, 1979 at 4. (Attachment 22)

13 Unfair competition is the most common complaint big businesses have against vendors. See Testimony of Carole Devitt, New York State Food Merchants Association,August20,1979(Attachment23)(“foodvendorscompete




easing sidewalk crowding, as the merchant associations had wished, the cap creates congestion by inviting a proliferation of unlicensed vendors. With no incentive to obey the numerous time, place and manner regulations the city places on license-holders, unlicensed vendors tend to congregate in the most congested areas of the city, where they can sell their wares quickly while evading arrest. 14

Numerous studies, including two city reports, have concluded that raising the licensing cap is a good idea. 15 First, it will create jobs and stimulate economic development by promoting entry-level entrepreneurship across the city. A recent report by the Center for an Urban Future recommended that the city reduce barriers to entry for immigrant and minority-owned small businesses, which are a vital engine for economic growth. 16 Second, lifting the cap will increase city revenues from sales taxes and licensing fees. While licensed vendors are required to pay sales taxes before renewing their licenses, unlicensed vendors have no such incentive. 17 Thus, by granting licenses to people who are already vending, the city stands to collect up to $25 million every year in additional tax proceeds as well as $2 million in licensing fees. 18

Finally, raising the cap will minimize the significant strain on police resources that is caused by criminal enforcement against unlicensed vendors. The NYPD arrests more than 7,500 illegal vendors each year, costing as much as $15 million and further clogging our already overburdened criminal justice system. 19 Rather than arresting and booking these vendors, police resources can be better spent enforcing the numerous time, place and manner restrictions that already exist to control sidewalk congestion.

unfairly withretailgrocerswhomustcomplywithmanyregulationswhichvendorsavoid”);GeorgeE.Jordan,125 th Street Battle, Newsday, December 21, 1992 (Attachment 24) (referencing store owners who believe that vendors, whodon’tpayoverhead,competeunfairlywith their prices); Isaac Armony, Merchants vs. Hobo Peddlers, N.Y.


(Attachment 25). However, many studies have shown that vendors actually help nearby stores. See John Gaber, Manhattan’s14 th StreetVendorMarket:InformalPeddlers’ComplementaryRelationshipwithNewYorkCity’s Economy, Urban Anthropology, Winter 1994 (Attachment 26); Hilary Russ, Sold Out: What happens to the neighborhood when street vendors disappear? City Limits, September/October 2002 (Attachment 27); The Good Old Days of Poverty, supra note1at212(“Ironicallyby1940,theEastSidebusinesscommunity,whichhadfoughtforten years to remove the embarrassing pushcarts, now complainedthattheirremovalirreparablydamagedtheirtrade”).

14 See Balancing Safety and Sales on City Streets, supra note 2 at 25 (contrasting the behavior of licensed vendors, who have an incentive to obey vending regulations, and unlicensed ones, who oftenleave“inahurriedretreatfrom lawenforcement”).

See Balancing Safety and Sales on City Streets, supra note 2 at 23-27; New York in Transition, supra note 6 at 69.

16 See Engine Failure: With Economic Woes That Go Well Beyond 9/11, New York Needs a Bold Vision To Renew theCity’sEconomy, Center for an Urban Future, September 2003 at 27-29 (Attachment 28). See also William Mellor, Is New York City Killing Entrepreneurship?, Institute for Justice Report, 1997 (Attachment 29).

17 See NYC Administrative Code § 20-455(b)(4)(“[Allapplicationsforalicense]shallrequire…proofthattheapplicant hasobtained…acertificateofauthoritydesignatingtheapplicants’salestaxidentificationnumberandatax clearancecertificate”);§17-309 (b)(4) (same).

18 See Linda Ricci, Urban America: Hawking Neighborhood Justice: Unlicensed Vending in Midtown Community Court, 12 Yale L. & Policy Rev 231 (1994) (citing a New York City Department of Finance estimate) (Attachment 30).

See Testimony of Robert Hettleman to New York City Council Committee on Consumer Affairs, April 7, 2003 (Attachment 31). The cost of each arrest in urban areas, inclusive of police, court, and jail resources, has been estimated at more than $2,000. See also Jeannine Munde, City Streetfight: Vendors vs. Retailers, Daily News






Closing Public Space

In addition to restricting licenses, big business interests have restricted vending by gradually limiting the public areas where vendors may vend. With the goal of eliminating vendors entirely, the BIDs have pushed the city to carry out six rounds of street closings over the last twenty years -- in 1988, 1994, 1995, 1998, 2000, and 2004. 20 More than 200 streets are now closed, and the list of restricted streets stretches 29 pages long. 21 Huge swaths of the city, especially in midtown and downtown Manhattan, have been declared off-limits, even in wide plazas with little foot traffic. 22 Indeed, it often seems to vendorsthattheyhavebeenoutlawed“inalloftheareaswhereitisfinanciallyviable.” 23 Additionally, rather than spreading vendors evenly throughout the city, street closings often create congestion by causing vendors to crowd together on the few blocks that remain open to them. 24

The problem with street restrictions is that the city has never established any objective criteria for determining which streets are too congested. 25 In 1995, the Giuliani administration established the Street Vendor Review Panel, with three members appointed by the Mayor and one by City Council. The Review Panel was charged with deciding which streets should be declared off-limits, but with no objective criteria, the process soon became an exercise in political influence. Within four years of its creation, the Review Panel closed hundreds of blocks at the request of the BIDs, without opening a single block at the request of vendors. 26 Its sole City Council member called the ReviewPanelprocessan“outrage”with“noinputfromelectedofficials,”whiletwolower courtsdeclaredthatthePanel’sdecisionswere“arbitraryandcapricious.” 27

20 See Ken Foskett, Vendors have beef with Bill limiting them, N.Y. Daily News, March 18, 1988 (quoting a representativeoftheFifthAvenueAssociationthat“ifwehadourway,theywouldbetotallyeliminated,”)(Attachment 33); Janet Allon, Vendors: Congestion vs. Digestion,October1,1995(“Midtownretailersandrestaurantshave lobbiedthecityforyearstorestrictallstreetvendors”)(Attachment34);DanJanison,More Vendors Curbed,

Newsday, June 1, 1998 (the biggest force behind [the closings] was the Downtown Alliance, a well-heeled business group”)(Attachment35);Denny Lee, ToRelieveSidewalkCrowding,CityTrimsStreetVendors’Hours, N.Y, Times, January 16, 2000 (Attachment 36); Joe Mahoney, DealtoCurbPeddlersOK’D, N.Y. Daily News, February 27, 2004 (describing street closings in the area around Ground Zero) (Attachment 37).




See 6 RCNY § 2-314 (Attachment 38).

See, e.g., Broadway between 50


and 49





and 51 st Streets; Sixth Avenue between 49 th and 50 th Streets; Third Avenue

Streets; Water Street between Wall and Governor Streets; Gold Street between Spruce and

between 48

Frankfort Streets (Attachment 39)

See Testimony of Elinor C. Guggenheimer before City Council Committee on Consumer Affairs, October 6, 1976 (Attachment 40); Fred Kent III & Andrew Schwartz, Save the Vendors, Change the System, N.Y. Times, June 6, 1998


regulations are embarrassingly out of date compared with other American cities).

Gretchen Dykstra, NYC Commissioner of Consumer Affairs, has acknowledged as much. See Vendor Fact Sheet submitted by Commissioner Gretchen Dykstra to New York City Council Committee on Consumer Affairs, April 7, 2003 (Attachment 42).

See Testimony of Elinor C. Guggenheimer, supra note 20 at 4-5.

26 144 blocks in midtown and downtown alone were closed in 1998. See Frankie Edozien, City Plans Ban on Food Carts, N.Y. Post, May 24, 1998 (Attachment 43).

See Testimony of Council Member Noah Dear, Street Vendor Review Panel Public Hearing, December 16, 1999, pp. 20-22 (Attachment 44), See MatterofBigAppleFoodVendors’Associationv.StreetVendorReviewPanel, 224 A.D.2d 219 (1 st Dept. 1996) (Attachment 45); MatterofBigAppleFoodVendors’Associationv.StreetVendorReview Panel, 90 N.Y.2d 402 (1997) (Attachment 46).



The Street Vendor Opportunity Bill will take the street closing decision out of the jurisdiction of the Review Panel and give it to the Department of Transportation (DOT), which already conducts pedestrian traffic surveys. 28 In fact, the DOT already uses objective, scientific criteria to ensure that newsstands do not cause excessive sidewalk congestion. These standards, which take into account sidewalk width and pedestrian usage during peak periods, should be used for general vendors and food vendors. 29 This will remove the street closing decision from the political process, while eliminating the current discrepancies whereby some streets are open to one type of vendor but not the other. 30

Next, the Bill will refine the regulations on thelocationofvendors’cartsandstands. 31 Prior to 1977, vendors were required to stay ten feet from regular store entrances, but twentyfeetfromtheentrancetoany“theatre,moviehouse,sportsarena,restaurantor other place of public assembly. 32 The law made a commonsense distinction between entrancesthatsaw heavytrafficandthosethatdidn’t.In1977,at the urging of the business community, City Council changed the law to require that vendors keep a twenty-foot distance from all entrances. 33 The present law sweeps too broadly and leaves no room for vendors on many city streets. 34 By re-establishing the rational distinction between these two types of entrances, which is maintained in other similar laws regarding sidewalk clearances from building entrances, the Bill will maintain the public safety while giving more vendors space to vend. 35

Creating Fair Penalties

Finally, the Street Vendor Opportunity Bill will better align vending penalties with those paid by other small business owners. By adjusting the fine structure, the Bill will ensure thatillegalactivitiesaredeterred,butthatvendors’livelihoodsarenotdestroyedfor technical violations. Over the years, vending penalties have increased disproportionately to other offenses. For example, the maximum fine for sidewalk obstruction by retail

28 SeeNYCCityCharter§2903(a)(5)(givingtheDOTthedutyto“collectandcompiletrafficdataandprepare

engineeringstudiesandsurveysinregardtovehicularandpedestriantraffic”). See Midtown Manhattan Pedestrian Network Development Project, June 2000; Lower Manhattan Pedestrianization Study, November 1997 (Available upon request).


See 6 RCNY 2-68(b)(6) which describes the required criteria for determining levels of congestion (Attachment 47).

30 See supra note 21.

For a complete list of current restrictions on the placement of vehicles, pushcarts and stands, see § 20-465(a)-(q) (Attachment 48) and § 17-315(a)-(t)(Attachment 49).

See Memo from Joel Morrison to the Committee on Consumer Affairs re: Int. No. 1021, April 4, 1977 (Available upon request).




See Local Law 77 of 1977 (Attachment 50).

34 Infact,the“twenty-footrule,”asitisknown,isaleadingcomplaintofvendorssurveyed,secondonlytopolice harassment. See Results of Survey from First Annual Vendor Convention, November 18, 2003 (Attachment 51).

For example, the law regulating newsstand location distinguishes between retail building entrances (only five feet required) and entrances to larger establishments like houses of worship, governmental buildings, hotels, office buildings and theaters (fifteen feet required). See 6 RCNY 2-68(b)(5) supra note 29. Similarly, the recently amended State law regulating disabled veteran vendors differentiates between regular commercial entrances and those to any “theatre,moviehouse,indoorsportsarena,orplaceofworshiporschool.”See NY State General Business Law, §35a(7)(h)(Attachment 52).



stores is $100, but vendors who obstruct the same sidewalk can be slapped with $1,000 penalties. 36 This type of discrepancy is unfair and unnecessary.

First, street vendors are more poorly equipped than other small businesses to pay such outrageous sums. The average vendor in New York makes only $80 per day, money which is spent on rent, food and clothing for themselves and their families. 37 At this rate, it takes many months for a vendor to earn enough to accumulate $1,000 to pay off a single ticket. With complex vending regulations 38 and arbitrary enforcement 39 , even law- abiding vendors get many tickets. This penalty system is too severe. Indeed, the current fine structure has already put many hard-working vendors out of work. 40

In addition, vendors earn so little money that deterrence can be achieved by less punitive measures. Rather than fines of up to $1,000, the Vendor Opportunity Bill will cap the maximum fine at $150, with a graduated penalty system that accumulates violations over a one-year period, not two years as is currently done. 41 Vendors will still be required to pay their fines each year before renewing their licenses, guaranteeing responsible behavior. Together, these measures will create a reasonable fine system that ensures compliance, while not unnecessarily crippling vendors for punitive reasons.

Finally, the Bill will take the control over penalty levels out of the hands of the EnvironmentalControlBoard(“ECB”),which has acted unfairly and arbitrarily toward the vending community, and give it back to City Council where it belongs. In 2003, with no notice to vendors, the ECB quadrupled vending fines to their maximum allowable levels under the ranges established in the Administrative Code. A State Supreme Court judge recentlyruledthatthisfineincreasewas“unfairandclearlyundemocratic”becausethe ECB failed to allow public input, as required by the City Charter. 42 While the court ordered a temporary fine decrease, the City has announced its plans to increase them, once again, after a hearing is held on November 18, 2004. With the bad faith the ECB has already shown vendors, such action should not be allowed. By eliminating the

36 See NYC Administrative Code § 16-122(h); See also § 20-472 (c)(2) and § 17-325, which set a range of vending fines following a multiple offense schedule of up to $1,000 per violation (Attachment 53).

According to a 2004 survey of 100 downtown Manhattan vendors, the average vendor earns only $11,000 per year. Report pending publication; Survey results are available upon request.

See New York City Council Press Release, Oct. 9, 2003. Commissioner Gretchen Dykstra and Councilman Philip Reed have denounced the complexity of current vending regulations. “Theregulationsaresoconvolutedthatlawyers can barely understandthem,”ReedtoldtheCommitteeonConsumerAffairs.InApril,Dykstrastatedthat“theCity’s


alsoElizabethO’Brien,City Pays Damages to Two Soho Street Art Vendors, The Villager, July 9-15, 2004 (Police, politiciansandothershavecalledforarevampingofthecity’scomplexvendinglaws,someofwhichdatebacktothe


have more clear-cutguidelinesandlanguage”)(Attachment55).

See Brad Hamilton, You Dirty Dogs: Big Fines Hide Flaws in Vendor Inspections, N.Y. Post, July 18, 2004 (hot dog vendor claiming to have gotten 46 tickets in six months, and continued to receive them despite his prior violations having been dismissed) (Attachment 56).

40 See Nina Bernstein, CourtRulesinVendors’Favor,DeclaringaFineIncreaseIllegal,N.Y. Times, Sept. 29, 2004 (describing Peruvian hat seller who had become so fearful of getting tickets that she was forced to stop vending) (Attachment 57).

41 The Sanitation and Sewer Codes aggregate penalties using a one-year term, while the Department of Transportation Rules use only six months. See The City Record, October 15, 2004, pp. 4357-4358.





See Ousmane v. City of New York, No. 402648/04 (order of J. Edmead, dated October 4, 2004)(Attachment 58).


current ranges, the City Council will create a fixed and fair penalty schedule that treats vendors as equals to other small business owners, while maintaining an effective deterrent system.


The Street Vendor Opportunity Bill will foster small business development and economic growth by giving vendors--our smallest of small businessesthe tools they need to enrichNewYork’sdiverseeconomy,astheyhaveforcenturies.Tomakeanhonest living, vendors need valid licenses, streets on which to vend, and penalties that do not threaten their very existence. While acknowledging that reasonable regulations are necessary, the Street Vendor Opportunity Bill recognizes that powerful corporate interests have nearly eliminated a New York tradition of street level entrepreneurship. By returning to vendors the chance for upward economic mobility, the Bill will create a powerful engine for growth whose effects will reverberate in every corner and throughout every neighborhood of New York City’seconomy.