Testimony Of Irum Taqi On Behalf Of The New York Civil Liberties Union Before The New York City Council Committee On Consumer Affairs Regarding INT. 621, In Relation To The Regulation Of Vendors My name is Irum Taqi. I am Legislative Counsel at the New York Civil Liberties Union ("NYCLU"). The NYCLU is the New York affiliate of the American Civil Liberties Union. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. In the forefront of those efforts has been our defense of rights of free expression under the First Amendment of the Federal Constitution and Article 1, Section 8 of the New York State Constitution. Int. 621, a proposed local law, seeks to overhaul and streamline the current assortment of laws regulating street vending in New York City. One objective of the proposed local law, which would repeal much of the administrative code relating to street vendors, is to provide uniformity in the regulation of non-food vendors. Currently, a patchwork of state statutes, city rules and regulations and judicial decisions govern street vendors in New York City, with the result that "[d]isabled veterans, non-disabled veterans, artists, crafts people, and booksellers all have a slightly different legal status as general vendors." Int. 621 would purportedly open almost all city streets and avenues to street vendors, subject to a statutory scheme involving licensing, allocation of space for vending, and a priority system for vendors seeking to vend at any given location. While allowing a larger number of people greater access to city streets to sell their wares is a laudable goal, the NYCLU is concerned that the proposed regulatory scheme would unduly burden protected First Amendment activity. The bill also raises privacy and due process concerns. The Licensing Requirement Places an Unconstitutional Burden on First Amendment Vendors Int. 621 would impose a licensing requirement on "First Amendment" vendors. The bill creates this new vendor category, defined as "[a] person who exclusively hawks, peddles, sells, leases or offers to sell or lease, at retail, newspapers, periodicals, books, pamphlets or other similar written material, paintings, photographs, prints and sculptures." There is a strong presumption that licensing schemes imposed on First Amendment activity will undermine constitutional protections afforded the right to freedom of speech and expression. First Amendment doctrine disfavors such licensing regimes because historically they have been employed to curtail free expression. It is well established that the First Amendment protects the sale of expressive merchandise. And it follows from this principle that requiring First Amendment vendors to obtain a license will likely serve to impermissibly restrict or discourage the free exercise of their First Amendment rights. Indeed, the Supreme Court has recognized that as a general principle individuals have the First Amendment right to distribute literature, leaflets and handbills without a license or permit. First Amendment jurisprudence does permit reasonable regulations regarding the time, place and manner of First Amendment activity. Courts have allowed this type of regulation, for example, as applied to the vending of First Amendment materials from a table on a public street. Licensing, however, involves regulation that by its very nature places a far greater burden upon protected First Amendment activity than time, place or manner restrictions. As currently drafted, therefore, Int. 621 would appear unconstitutional as regards the licensing requirement imposed on First Amendment vendors. Indeed, the New York City Council recognized the presumption against licensing First Amendment activity when in 1982 it exempted from a licensing requirement all general vendors who exclusively vend "newspapers, periodicals, books, pamphlets or other similar written material." The Council noted "that 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." Subsequently, in the mid 1990’s, several visual artists challenged the city vendor law’s requirement that they obtain a license in order to display and sell their artwork on city streets. The Second Circuit Court of Appeals ruled in Bery v. City of New York that the license requirement violated the artists’ First Amendment right to sell their artwork in public places, and granted a preliminary injunction against the enforcement of the licensing requirement. As a result, vendors who vend "any paintings, photographs, prints and/or sculpture, either exclusively or in conjunction with newspapers, periodicals, books, pamphlets or other similar written matter, in a public space" do not currently have to obtain a vendor’s license. The Committee report supporting Int. 621 states that the proposed licensing scheme "seeks to upholds [sic] the rights granted to first amendment peddlers under Bery." The bill would place no limit on the number of First Amendment vendor licenses. (This provision is apparently included to address the Bery Court’s finding that a restrictive cap on the total number of vendor licenses had made it virtually impossible for plaintiffs to obtain licenses, effectively barring visual artists from exhibiting their work in public areas.) Despite eliminating a cap on the number of licenses for First Amendment vendors, however, the licensing scheme remains a presumptive burden on protected First Amendment activity. The proposed space-allocation scheme and priority system appear to violate the constitutional rights of First Amendment vendors Int. 621 proposes to allocate space to vendors and to give priority to certain vendors in a particular space. This regulatory scheme raises constitutional concerns, as well as issues of practical implementation, regardless of whether First Amendment vendors are required to obtain a license. While the city is free to impose reasonable regulations on First Amendment vendors who use tables, carts, and similar devices in order to keep the sidewalks free of congestion, the restrictions must be "narrowly tailored to serve a significant governmental interest" and must "leave open ample alternative channels for communication." It is unlikely that the proposed space-allocation scheme and priority system for vendors comply with this standard. I will address these provisions of Int. 621 individually. Space-Allocation Scheme Int. 621 proposes a space-allocation scheme that would allow up to three vendors to vend their wares on each blockface throughout the city. A priority system (discussed below) would operate so that one vendor representing each of the three vendor types – food, general, First Amendment – is given a preference in taking one of the three vending spots on any given block. The intent of this proposal presumably is to increase the opportunity to vend while at the same to prevent congestion on city streets. These objectives reflect significant government interests. However, the proposed space-allocation scheme could hardly be characterized as narrowly tailored. The space-allocation regime must be analyzed in light of the reasonableness of the restrictions placed upon the availability of space to First Amendment vendors. There is nothing in the legislative record regarding Int. 621 that provides a basis for answering these questions. It is easy to foresee, however, that the proposed regulatory scheme would have the effect of severely restricting the scope of First Amendment vending activity. Although the bill proposes to open up many more city blocks to vendors, as a practical matter a relatively small number of blocks will provide the greatest exposure to pedestrian traffic. And if this assumption is correct, a disproportionately large number of vendors will be competing for a geographically small area of prime vending space. Under the preferred space allocation scheme that would place one First Amendment vendor per blockface, it is all but predictable that many if not most purveyors of First Amendment materials will lose the contest for choice vending sites. In short, Int. 621 proposes sweeping new regulations for vending activity in the absence of the empirical evidence that would provide a rationale or justification for such regulations. To undertake such an evaluation would require answers to questions such as these: How many individuals are there in each of the proposed vendor categories? Where do they currently vend? What is the current location specific concentration of food, general and First Amendment vendors? How many unlicensed vendors are there, and where and what do they vend? Is restricting a blockface to three vendors, one of each type proposed in the bill, a fair or appropriate allocation of space? Would limiting three vendors per blockface be overly restrictive in certain areas but insufficiently restrictive in others? Does it make sense to allocate one of each type of vender per blockface throughout the city? This inquiry suggests that before proceeding with Int. 621, the City Council must undertake a land-use study to determine whether the proposal reasonably and appropriately allocates space to vendors. This study should take into account congestion and pedestrian traffic patterns in particular streets and areas, as well as consumer demand for a particular type of vendor in particular locations and at particular times. As it stands, Int. 621 outlines a regulatory scheme for allocating vending space that appears arbitrary. It would impose a significant burden on the vending of First Amendment materials; and in the absence of compelling evidence to the contrary, the proposed regulations appear to strip from First Amendment vending the constitutional protections afforded such activity. Priority System The constraints upon First Amendment vendors created by the limitation of three vendors per block is exacerbated by new rules that would dictate which vendors have priority in taking one of the three vending spots on a blockface. As noted, the city may place narrowly tailored restrictions upon First Amendment vendors in order to keep the sidewalks free of congestion, provided alternative channels of communication exist. The proposed priority system appears to fail this constitutional test. Under the proposal, if one of each type of vendor is not present on a blockface, then two or more of the same type of vendor could use the available spots. Between 5:00 a.m. and 11:00 a.m., if two similarly licensed vendors contend for one available space, the person who arrived at the location first would have priority. This restriction would not apply to a disabled veteran vendor, who would have priority over and be able to displace a general vendor. After 11:00 a.m., priority between two First Amendment vendors would be given to the vendor with a lower priority number. Priority numbers would be determined based on the date of the First Amendment vendor’s application for a state tax identification number. Granting First Amendment vendors priority numbers based on the date of their application for a New York State tax identification number is an arbitrary and highly restrictive means of regulating protected First Amendment activity. Vendors who applied for a tax identification number earlier in time would be granted priority over those who applied later. Conditioning priority of speech and expression based on such a scheme is an impermissible restraint on individuals’ First Amendment rights. Consider, for example, the following hypothetical scenario: Three First Amendment vendors set up their wares on a prime blockface in midtown pursuant to the first-come first-served scheme between 5:00 a.m. and 11:00 a.m. proposed by the bill. A general vendor selling commercial goods comes along and contends for a space. Under the priority system, one of the First Amendment vendors will get "bumped." But who decides which First Amendment vendor got there first and who will have to leave? Who will enforce it? What if two First Amendment vendors arrived at the same time? Where will the displaced First Amendment vendor go? It is unclear whether the vendor will be able to vend in a comparable location. What if all the blockfaces in the vicinity already have the preferred allocation of one of each type of vendor? What if the only open space the displaced vendor can find is better suited for a food vendor? The priority system also raises questions related to enforcement. It seems inevitable that a contest for prime vending spots would ensue with the opening up of so many city streets and avenues to vendors. How would the resulting conflicts be resolved as a practical matter? Are police officers realistically going to be able to keep track of and enforce the complicated rules governing the priority system? This example illustrates the priority system’s potential burden and chilling effect on speech. The words of the Supreme Court more than half century ago stressed a basic precept of the First Amendment: "[T]he streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." The priority system, on its face, appears to do just that. It also appears to create a vague and unenforceable regime. Will the Restrictions and Prohibitions on Location, Placement and Size of Vendor Displays, In Conjunction With the Space Allocation Scheme and Priority System, Unduly Restrict Speech? Further complicating matters are the regulations relating to the location, placement and size of vendor’s vehicles, pushcarts and stands. While reasonable time, place, and manner restrictions on the location, placement and size of vending displays are permissible, a question that arises is whether these restrictions, operating in conjunction with the space allocation scheme and priority system, will serve to restrict speech. Taking the hypothetical example raised above of the First Amendment vendor who was displaced under the priority system, will her ability to find an alternative space to vend be further compromised by these restrictions? What if the vendor finally finds what she believes is an available space under the space allocation scheme, but it happens to be less than twenty feet from the sidewalk or less than ten feet from a driveway? Again, a land use assessment needs to be undertaken to determine whether these restrictions, operating with the restrictions proposed by the priority system, are reasonable, or whether they would serve to impermissibly constrain First Amendment protected activity. The Fingerprinting Requirement Raises Privacy Concerns The bill would require general vendors and food vendors to be fingerprinted as a condition for obtaining a vendor’s license. This requirement raises serious privacy concerns. Because fingerprints contain private identifying information, they should only be taken in limited circumstances. Individuals in certain sensitive positions, like day care workers or police officers, may be fingerprinted as a condition of employment. In the criminal context, fingerprinting is limited to individuals that have been arrested and charged with a felony or certain misdemeanors. Taking fingerprints of an arrestee serves vital law enforcement objectives, including ascertaining the identity of a person charged with or convicted of offenses and protecting the innocent from wrongful charges. The goal of the fingerprinting requirement for vendors -- to prevent counterfeit licenses -- does not necessitate such an invasion of privacy. This objective can be achieved using less intrusive measures, such as a hologram. Due Process Concerns The bill includes other provisions that may unduly infringe upon the rights of vendors. For example, the bill gives the Commissioner authority to deny or renew a license if an applicant has pending or unanswered summonses or unsatisfied fines or penalties, without giving a vendor recourse, that is due process protections, if he or she was unaware that he or she had outstanding tickets. Additionally, the bill fails to provide procedural safeguards in the event of a forfeiture proceeding. It does not specify a timeframe in which property would be returned, does not provide for an accounting of the property seized, nor does it allow for a post-seizure hearing. Such procedural protections are set forth in the New York City Rules and Regulations relating to property taken or obtained in connection with an arrest, and should be adopted. Creating Preference for Religious Organizations Another constitutional concern relates to § 20-459 of the bill, which provides: "[the] commissioner may promulgate regulations exempting any non-profit association, including, but not limited to, a government agency, charitable, educational, religious or other such organization from compliance with any of the provisions of this subchapter." This provision appears to create a preference for religious organizations, and to give the commissioner unduly broad discretion in this regard, both of which are constitutionally impermissible. Definitional Problem Finally, §20-473 prohibits individuals from transporting goods to a general vendor without a distributor’s license. The, bill, however, fails to include a provision detailing how to obtain a distributor’s license. Conclusion Int. 621 proposes a regime for regulating street vendors that fails to take into account fundamental constitutional principles. Notwithstanding the important objectives the bill seeks to accomplish, the NYCLU finds the proposed framework fundamentally flawed. We would welcome the opportunity to discuss these issues further and to work with the Committee in crafting a regulatory scheme that appropriately balances the rights of street vendors with the city’s duty to protect public safety.