A Walk in the Park: New Park "Vendor" Rules Won't Affect Performers - City. Commish Lies Over Responsibility For 2011 Crack-Down

"Although those rules are written, you're saying that none of those rules is going to be enforced on us. Excuse me but that's a contradiction and that confuses the entire room."

- Joe Mangrum to Manhattan Borough Parks Commissioner William Castro.

Colin Huggins playing in the Washington Square Park over the weekend. In 2011 he received numerous summonses from Park Enforcement Patrol officers in a crackdown on performers carried out by the Parks Department. Under new rules adopted by the agency, the city classifies "entertainers" who solicit donations in parks as "vendors," requiring licenses and special permits. Yet at a Community Board 2 meeting last week, Manhattan Borough Parks Commissioner William Castro said the new rules won't be enforced, leaving many people scratching their heads in confusion. (Photos: Geoffrey Croft/NYC Park Adovocates) Click on images to enlarge

Castro blamed the 2011 summons crackdown against performers and musicians on a single PEP officer, an assertion vehemently denied by those involved. The ticket blitz generated a public outcry and considerable media attention.

The revised park rules for performers and musicians go into effect on May 8th. There are two PEP officers and one supervisor assigned to cover 59th Street to the Battery in Manhattan.

Manhattan

By Geoffrey Croft

The Parks Department spent last week backpedaling from its 2011 ticket-blitz on musicians and performers in Washington Square Park, pinning the blame on one overzealous Parks Enforcement Patrol officer – yet it refused to reverse the rule changes that led to the crackdown, and in fact added more restrictive language.

Confusion and disbelief reigned at a meeting of Manhattan Community Board 2’s Parks Committee, as a senior Parks official vowed the new rules, which go into effect May 8, won’t stop musicians and other performers from playing in Washington Square Park.

The City is attempting to classify performers and musicians "providing entertainment" who solicit donations in parks as "vendors" under new rules adopted by the agency.

On April 2, the department quietly held a public meeting that finalized the changes.

The new rule is aimed at controlling revenue production in parks, and cracking down on long-protected rights critics say, and violators face fines of up to $250 for a first offense and up to $1,000 thereafter.

According to Parks however, the purpose of the new rules is to "clarify the Department’s original intent that individuals providing entertainment, such as musical performances, juggling, dance, or other performance arts in exchange for a fee or for a donation are considered vendors.”

§ 2. Section 1-05(b) of Title 56 of the Official Compilation of the Rules of the City of New York has now been amended to read as follows: "No person in or on any property under the jurisdiction of the Department shall sell, offer for sale, hire, lease or let anything whatsoever, including, but not limited to goods, services, or entertainment, or provide or offer to provide services or items, or entertainment in exchange for a donation (hereinafter ‘vend’), except under and within the terms of a permit, or except as otherwise provided by law.”

Steven Goulden, acting corporation counsel in the city's Law Department, signed this amendment dated December 28, 2012. On January 29, 2013 Hunter Gradie from the Mayor’s Office of Operations, analyzed the proposed rule Pursuant to Charter section 1043(d).

In 2011, street performers were aggressively targeted by the Bloomberg administration under the new rule’s prohibition against collecting donations near landmarks or monuments in parks under the Parks Department's Expressive Matter vending rules. PEP officers were instructed to ticket performers and musicians for unlawful vending and unlawful assembly. Several performers were threatened with arrest.

Joe Mangrum making one of his signature sand creations in Washington Square Park on Friday. During the initiative in 2011 he received six tickets over several weeks, five in Washington Square Park and one in Union Square Park totaling $4,750 in fines.

On Thursday April 25th, DEP employees accompanied by a captain and plain clothes officers from the 6th Pct, and Parks Department personnel surveyed the noise conditions created by musicians playing in Union Square Park. It was was quiet according to city sources.

"The park is for everyone, for the general public, not for (a performer) whose sole purpose is making money," William Castro told the Daily News in 2011. He was referring to the street performance group Tic & Tac, who had been doing shows in Washington Square Park for more than 25 years.

Public outcry forced the city to eventually back down. Legal action was threatened but not before PEP officers wrote dozens of tickets. Within weeks of a December 2011 press conference held in Washington Square Park to denounce the crackdown, the city agreed to dismiss all summonses. Many of the performers and musicians who attended the news conference, organized by NYC Park Advocates with attorneys Norman Siegel and Ron Kuby, spoke of being harassed, some since the spring.

In a highly controversial move earlier that year, the city had attempted to prohibit performing near Central Park's Bethesda fountain as well. A legally blind a cappella singer was threatened with arrest after the singer received multiple summonses.

However in a 180-degree turn at last week’s meeting Manhattan Borough Parks Commissioner Castro claimed performers would in fact be allowed to do many of the things they had previously been ticketed for in 2011.

Castro insisted nothing will change. This "slight adjustment to the rules," he said, “is not going to affect the musicians to come to the park to play."

Most people at Wednesday's meeting understood Mr. Castro's explanation as the city was not going to enforce the rules that the Parks Department just passed. And Mr. Castro's assurances did little to allay the fears of many in the audience.

"It can be confusing, I understand that," he said.

"It's gotten some attention through confusion, which we understand."

"If you come to play music, the guys and gals who sit on the benches who play, they sit on the grass, wherever, they stand right by the Garibaldi statue and play – all those places, the piano – you can play under the arch, you're fine," Castro explained.

"You don’t need a permit. You are not going to be told to leave the park. You're not going to get a ticket. You're fine. You can do that – that's not going to change. You don't have to be x feet away from this or that or any of that jazz – you don't have to do that.

If you're putting the hat out and your case is open and people traditionally put money into it, you're fine. That's not a problem at all," Castro said.

He also stressed that performers were allowed to sell CDs without a permit, as long as they didn't have a display stand that people could trip over.

Castro said the rule change had nothing to do with Washington Square Park in mind though the distance restrictions would effectively put the park off-limits. "It's not because Washington Square was a problem, and we wrote this change or something," he said.

On December 19, 2011, Community Board 2 had convened a very well attended meeting where not a single person spoke in favor of the Parks Department's crackdown on performers, except for Castro. At the time he claimed the new rules were not meant to ban performers from soliciting donations.

So why have the new rule then? On Wednesday Community Board members asked Castro to explain why the 2011 crackdown occurred and who was responsible.

Following the well-worn path created by his ex-boss, former Parks Commissioner Adrian Benepe, Castro would not accept responsibility for the screw-up and instead offered an elaborate explanation that obfuscated the reality.

"I think it would be helpful to clarify what happened then," said former Parks Committee chair – and former Parks Department employee – Tobi Bergman.

"Someone went off basically and enforced the strict letter of the law or whatever – it's not even clear to me. It's been a few years, and I'd have to go back and take a look at it," Castro replied.

"Who was this somebody?" another board member asked. "Was it a PEP officer or . . . "

"A PEP officer, a PEP officer, yes, that's right," he said.

Instead of answering the question honestly, Castro portrayed the campaign by several city agencies against “expressive matter vendors" as the actions of a lone rogue PEP officer. Yet at the time, the most senior Parks Department officials were involved on this issue and included coordinating with the NYPD's 6th Precinct, according to several Parks employees intimately aware of the operation.

They say the crackdown had been sanctioned by then Parks Commissioner Adrian Benepe with the department’s General Counsel, Alessandro Olivieri, and it was implemented by multiple Parks officials, including Castro and senior Park Enforcement Patrol personel Mike Docket and Raymond Brown as well as PEP Inspector Robert Reeves, Deputy Inspector Edwin Rodriguez, and others – all of whom personally went down to Washington Square Park to supervise and survey the situation at various times during the initiative.

"Those orders came from them, not from us," said a PEP officer familiar with the plan who spoke on the condition of anonymity for fear of retribution. "They tried everything to get these guys, but nothing would stick. (The tickets) kept getting thrown out in court."

Another option discussed in meetings with the NYPD would use the city’s noise ordinance against performers. "They talked about getting an audio meter to measure the noise levels, but they never came through with it,” said the PEP officer.

"It's much easier to throw green shifts under the bus than to take responsibly yourself,” said another officer, referring to the uniform worn by PEP officers.

Other sources point out the crackdown came during Occupy Wall Street, when the city was operating on heightened security and responded in a knee-jerk reaction.

"Our officers had absolutely nothing to do with initiating this," said Joe Puleo, vice president of DC37's Local 987, which represents PEP officers. "They did what they were instructed to do and did so reluctantly. They were uncomfortable. Many felt they were violating these people's rights."

Instead of directing resources to prevent crime at a time when PEP head count was at record lows and crime in parks was rising Puleo said, the Bloomberg administration choose to make stopping performers a priority. "These orders came through management and the administration," he said. "They thought they were in Giuliani mode."

During the 2011 crackdown, pianist Colin Huggins was issued nine tickets by several different officers for playing classical music in Washington Square Park. "It felt like he was trying to cover something up," Huggins said, contesting Castro's version of events. "Did he think anyone would believe that this was done by one officer?"

Huggins was one of the musicians threatened with arrest. He was approached near the park's fountain by Ray Brown, whom he described as supervising the initiative.

"He was calling my piano my 'art stand.' He showed me an illustration of a foldout table for vending and said the piano was the same thing. It was ridiculous. We went back and forth, and finally he said, 'You know the rules.’ He said, ‘If you don't leave now, we're going to arrest you, and no one likes to get arrested.’"

Huggins said that after a while the issuing of summonses was so routine "it got to the point where it was like, ‘Here's your ticket for the day.’ They would slip it under my sheet music so as not to interrupt my playing. The officers giving the tickets themselves were very nice."

Ray Brown was upset to see Huggins playing under the Washington Square Park arch. "He didn't like that," according to a Parks Department source.

Artist Joe Mangrum has been working in the park for years.

"The rules that I saw that were passed on April 2nd include any exchange of money is considered vending and that no vending can be done within fifty-feet of a monument, no vending can be done within so many feet (5 feet) of a bench, which basically makes it impossible to do any of what you just said in Washington Square," Mr. Mangrum said addressing Castro at the Community Board meeting.

"Then you're confusing the issue because that's what is written, that's what's written in the rules, and you just contradicted everything in that in what you just said," he said.

Mangrum, who lugs 60 pounds of sand from Brooklyn to create his brightly colored designs on the ground, said he had been issued six summonses by at least three different PEP officers over two months in 2011. Five tickets were issued in Washington Square Park and one in Union Square Park, totaling $4,750 in fines.

"It was an Oscar-worthy performance," Mangrum said afterwards, noting Castro's lack of candor. "He threw PEP under the bus and took no responsibly for who was behind it."

In December, 2011, Kareen Barnes, a member of the group Tic & Tac, said he had been slapped with nearly $10,000 in summonses in two months -- but an Environmental Control Board judge dismissed all the fines after he argued his Constitutional rights had been violated. He said they city has given him and his brother dozens of tickets over the years, and all of the tickets have been thrown out in court.

State Assembly member Deborah Glick's chief of staff, Matt Borden, echoed the feeling of the crowd when he said that relying on one commissioner’s word wasn't in the best interest of the public, when the rules say something very different.

“The next Parks Commissioner, if they don’t have the same ethos as you folks, you might have to fight this fight again.”

He said something more binding and concrete should be adopted to reflect what Castro was representing. Several members of the Community Board recommended the same thing.