Friday, March 26, 2010

Proposed New Parks Department Vending Rules Curb First Amendment Rights

Parks Department Creates Sweeping New Rules For Artists
By Robert Lederman, President of ARTIST

The NYC Department of Parks has just presented a proposed set of
totally new rules for street artists who display or sell art in NYC
Parks. It was published in The City Record on 3/24/2010.

There will be a public hearing on April 23, 2010 at Chelsea Recreation
Center, 430 West 25th Street, New York, NY  10010 at 11:00 AM. The
ARTIST group will hold a large protest before the hearing.

The full text of the proposed rules and a link to maps showing each
vending spot is below my comments.

The most significant change is that First Amendment protected street
artists will now be severely limited as to where they can set up an
art display in a park and as to how many artists can set up in each
park. The Department of Parks has set a specific arbitrary numerical
limit within each of the parks or park controlled areas around parks
that routinely have artists selling in them, as follows:

* Battery Park, 9 artists allowed.
* In front of the Metropolitan Museum of Art (between 79th and 81st
streets) 12 artists.
* In front of the Metropolitan Museum of Art (between 84th and 85th
streets) 12 artists.
* Union Square Park 18 artists allowed.
* Columbus Circle, 4 artists.
* Wein Walk (near the Central Park Zoo) 8 artists
* High Line Park, 3 artists

In the above noted parks, all legal vending spaces for artists (aka
First Amendment protected vendors or expressive matter vendors) will
be marked with a Parks Department sticker.

While the proposed rules claim it will be first come, first served as
to how these very limited spots will be allocated (see below), the
Parks Department’s real intention is to set artist against artist so
as to justify replacing this unworkable arrangement with a permit and
concession system in which artists must bid hundreds of thousands of
dollars to win each spot, just like a hot dog vendor. The highest art
vending bid will get the concession.

The Parks Department described their intention to implement this exact
system in a NY Times letter dated 2/28/96

“We are considering a plan to allow art vendors to bid for eight one
year permits. The bids for these permits are likely to be less than
those submitted for year round concession stands.”
NY Times February 28, 1996 Parks Restrict the Sale of Art, Not Its

A copy of the new Parks Department rules proposal (one document as
WORD text and a separate PDF of the City Record notice with the maps)
has been posted at these addresses for your convenience:

The Parks Department has also described in these documents the number
and placement of Park Conservancy approved food, tee shirt and
souvenir concessions that will be set up in each of these parks. Note
that groups like the Central Park Conservancy directly run all of
these concessions, take in millions of dollars in concession fees each
year and get a significant cut of all profits from each food cart or
souvenir stand within each park. All of the vendors one sees running
these concession stands are minimum wage employees of corporations.

As an example of the low regard the Parks Department and the Park
conservancies have for street artists’ freedom of expression, in High
Line Park they will allow 3 artists and 3 food concessions, as if
these two activities are in any way of a similar legal status.

There is a Federal constitutional guarantee of free expression in
public parks and the ARTIST group has won numerous Federal lawsuits
supporting this right. There is no constitutional right to sell hot
dogs or souvenirs in a park.

Note that while the High Line will only allow 3 small street artist
displays, the entire park is now available to be rented out for
private parties and corporate promotions, according to the Friends of
the High Line website. Recently, Calvin Klein threw a huge promotional
party up there.

In Union Square Park, First Amendment protected artists will be
limited to a very small area while the non First Amendment protected
Greenmarket and the Holiday Gift Market selling clothing and jewelry
will continue to take up hundreds of times as much space.

At Columbus Circle only 4 artists will be allowed while the Parks
Department runs a huge congestion generating Holiday Gift Market in
the same location that is a month long event.

If preventing pedestrian congestion allegedly caused by street artists
was the genuine concern of the Parks Department, why are there daily
corporate promotions in NYC parks by companies like Disney, Nike,
Sony, Best Buy, Target, JP Morgan Chase and a thousand others that
involve huge displays, thousands of participants, numerous giant
trucks, powerlines and other dangerous infrastructure?

If one factors in the additional proposed restrictions that artists
cannot be within 50 feet of any monument, public work of corporate
owned art or of any statue; within 5 feet of any tree, bench, garbage
can or sign; or on any sidewalk with less than a 12 foot clearance
from the art display to the curb, it becomes clear that these proposed
rules are intended to virtually eliminate street artists from NYC

That this change to the rules is being done to allow more room for
corporate promotions and park privatization rather than to address any
genuine issue of public safety, means that the artist group is
prepared to defy these restrictions in every park and to sue in
Federal Court to overturn them.


With these proposed new rules coming at the same time as Intro #36
(BIDs will control all vending in their districts) and Intro #30 (any
vending stand left unattended for 30 minutes will be confiscated),
both of which are pending before the City Council, it is clear that
the city plans to make 2010 the year of attacking every aspect of
street artists’ freedom of speech.

Mayor Bloomberg has just severely cut his “gifts” to the arts SEE: NY
Times 3/18/2010 Bloomberg Is Quietly Ending a Charitable Program
Factor in this new assault on artists’ rights and it is clear that the
Bloomberg administration intends to reignite the war against street

Intro # 36 files:

Intro # 30 files:

If the Parks Department succeeds in limiting artists in parks to a few
marked off spaces, the City will then apply this same system to the
streets, and eventually replace that system with a full blown
permit/concession system, which was their original intention since

ARTIST will hold a protest at the hearing for these park rules (the
time will be announced).

Contact info:
Robert Lederman, president of ARTIST

Parks Commissioner, Adrian Benepe
212 360-1305

Alessandro Olivieri, Parks legal counsel
212 360-1313

Deputy Commissioner Kevin Jeffrey, Parks Enforcement
212 360-1381

Friends of the Highline
(212) 206-9922

Geoffrey Croft
NYC Park Advocates
(212) 987-0565


The Parks Department proposal:


Notice of Opportunity to Comment on Proposed Rule

Revision of §§1-02 and 1-05(b) of Title 56 of the Official Compilation
of Rules of the City of New Yor

Commissioner of the Department of Parks & Recreation (“Parks”) by
Sections 389 and 533(a)(9) of the New York City Charter and in
accordance with the requirement of Section 1043 of the New York City
Charter, that Parks proposes to amend §§1-02 and 1-05(b) of Title 56
of the Official Compilation of Rules of the City of New York.

Written comments regarding the proposed rules may be sent to
Alessandro G. Olivieri, General Counsel, Department of Parks &
Recreation, The Arsenal, Central Park, 830 Fifth Avenue, New York, New
York 10065, by April 23, 2010.  A public hearing shall be held on
April 23, 2010 at Chelsea Recreation Center, 430 West 25th Street, New
York, NY  10010 at 11:00 a.m.  Persons seeking to testify are
requested to notify Laura LaVelle at (212) 360-1335 or  Persons who request that a sign language
interpreter or other reasonable accommodation be provided at the
hearing are asked to notify Laura LaVelle at the foregoing address by
April 8, 2010.  Written comments and a tape recording of oral comments
received at the hearing will be available for public inspection,
within a reasonable time after receipt, between the hours of 9:00 a.m.
and 5:00 p.m. at The Arsenal, Room 313, telephone number (212)

These amendments were not included in the Parks regulatory agenda
because the Department was not aware of the necessity for amendments
at the time the regulatory agenda was prepared.

New material is indicated by underlining.  Deletions are indicated by brackets.

Section 1.  Section 1-02 of Title 56 of the Official Compilation of the Rules of the City of New York is amended to add a new definition to read as follows:
Expressive Matter.  “Expressive matter” means materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, or sculpture.
§ 2.  Section 1-05(b) of Title 56 of the Official Compilation of the Rules of the City of New York is amended to read as follows:
§ 1-05             
            (b)        Unlawful Vending.
(1)        No person in or on any property under the jurisdiction of the Department [park, or street adjacent to or abutting a park (including all public sidewalks of such abutting streets)] shall sell, offer for sale, hire, lease or let anything whatsoever, or provide or offer to provide services or items in exchange for a donation (hereinafter “vend”), except under and within the terms of a permit, or except as otherwise provided by law.  For the purposes of this entire section, persons who vend as defined herein may be referred to as “vendor” or “vendors.”


(2)        Persons may vend expressive matter, as defined in section 1-02 of this title, on property under jurisdiction of the Department without a permit, but must comply with all applicable provisions of these rules.  However, in the specific locations enumerated in paragraph (3) expressive matter vendors may only vend expressive matter at the specifically designated spots identified by the Commissioner in the accompanying maps and as marked by a numbered Department decal, or other form of marking, on the specific location of the approved vending spot.  These spots shall be allocated upon a first come, first serve basis except as otherwise provided by law and any expressive matter vendor may only vend expressive matter directly behind the numbered Department decal.  Only one expressive matter vendor is authorized to vend directly behind the numbered Department decal and if multiple expressive vendors attempt to vend expressive matter at any one numbered Department decal, then all such expressive matter vendors at such spot will be in violation of this section and may be directed to leave the area of that numbered Department decal immediately.  Any such expressive matter vendor failing to leave the area of the numbered Department decal immediately upon direction as required under the preceding sentence will be in violation of these rules.


(3)        Specifically designated spots for expressive matter vendors are located in the following general areas, and are specifically depicted on the accompanying maps:
(i)         Central Park at the following locations: (A) the perimeter of the Park between East 85th Street and East 60th Street, (B) the perimeter of the park between West 86th Street and West 60th Street, (C) all of Central Park South, (D) Wien Walk and Wallach Walk, (E) East Drive, (F) Grand Army Plaza, (G) Pulitzer Plaza, and (H) Columbus Circle.
(ii)        Battery Park, including all perimeter sidewalks. 
(iii)       Union Square Park, including all perimeter sidewalks.
(iv)       Elevated portions of High Line Park.


(4)(i)    No vendor in or on any property under the jurisdiction of the Department shall allow any item or items used or offered in conjunction with vending to touch, lean against or be affixed permanently or temporarily to any street or park furniture installed on public property or any rock formation, tree, shrub or other planting. 
(ii)        No vendor shall block any patron from using any street or park furniture installed on public property by way of the vending activity.
(iii)       No vendor shall vend anything in such a manner that would damage or otherwise injure Department property, including, but not limited to lawns, plants, animals or buildings.
(iv)       No vendor shall vend anything that is placed immediately on a sidewalk or park path, or on a blanket or board placed immediately upon such surface or on the top of a trash receptacle or cardboard box.
(v)        No vendor shall vend anything over any ventilation grill, cellar door, manhole, transformer vault or subway access grating.
(vi)       No vendor shall vend anything whatsoever directly from any parked or double parked motor vehicles except for food vendors with appropriate Department and New York City Department of Heath and Mental Hygiene permits.
(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; 
(ii)        is placed on any other part of a sidewalk under the Department’s jurisdiction other than that which abuts the curb, unless otherwise authorized;
(iii)       is in an unsuitable location because the location is a specialized area including, but not limited to, a zoo, swimming pool, playground, athletic field or court, or skating rink;
(iv)       is within any bus stop, carriage horse stand, pedicab stand, or taxi stand;
(v)        is within five (5) feet from any street or park furniture, public telephone, disabled access ramp, tree, or from individuals or entities authorized by permit or license by the Commissioner to operate at a specific location;
(vi)       is within ten (10) feet from any crosswalk on any path or on any sidewalk under the jurisdiction of the Department; 
(vii)      is placed within fifty (50) feet from any monument or other public art installation;
(viii)      occupies more than eight (8) linear feet of public space parallel to the curb or park path;
(ix)       occupies more than three (3) linear feet in depth;
(x)        is more than five (5) feet high or less than twenty-four (24) inches above the sidewalk or park path where the display surface is parallel to the sidewalk or park path, and may not be less than twelve (12) inches above the sidewalk or park path where the display surface is vertical; 
(xi)       where a rack or other display structure is placed on the top or above a table or other base, the size of the base is not less than the size of any rack or display structure placed thereon.  Nothing shall be placed on the base so as to exceed the size limitations contained in this section;
(xii)      uses any areas other than that area immediately beneath the surface of the display stand for the storage of items for sale, unless permitted by Department license or permit for the use of a fixed location to store items for sale; or
(xiii)      fails to use an opaque covering to shield any items stored beneath the surface of the display stand.
(6)        For the purposes of this section a display stand shall mean a movable, portable or collapsible structure, framework, device, container or other contrivance used by a vendor in any property under the jurisdiction of the Department for the purpose of displaying, keeping or storing any goods, wares, merchandise, foodstuffs or expressive matter.
(7)        For the purposes of this section, street or park furniture shall mean any City-installed, maintained or approved structure, including but not limited to, benches, newspaper boxes, tree guards, fire hydrants, trash receptacles, telephone kiosks, newsstands, bus shelters, barricades, bollards, traffic signs, traffic lights, walls, water fountains, ornamental fountains, or fences located in any property under the jurisdiction of the Department.


(8)        Where exigent circumstances exist and a Department employee or police officer gives notice to a vendor to move temporarily from any location such vendor shall not vend from such location.  For the purposes of this section, exigent circumstances shall include, but not be limited to, unusually heavy pedestrian or vehicular traffic, the existence of any obstruction in the park, an accident, fire, or other emergency situation, a parade, special event, demonstration, construction project, maintenance operations, or other such event at or near such location, including periods of set up and take down for such exigent circumstances.



These rules are promulgated pursuant to the authority of
the Commissioner of the Department of Parks and Recreation (the
“Commissioner”) under sections 389, 533(a)(9) and 1043 of the New York
City Charter.  The Commissioner is authorized to establish and enforce
rules for the use, governance and protection of public parks and of
all property under the charge or control of the Department of Parks
and Recreation.

The proposed rules provide reasonable opportunities – by and through
limited time, place, and manner restrictions – for expressive matter
vendors to display and sell their wares on parkland.  These rules not
only provide greater clarity for vendors regarding where and how they
can operate on parkland, they also ensure that our parks do not become
so congested that they do not provide the public with enjoyable and
accessible open space.

The Department determined that it was necessary to promulgate these
rules to address concerns raised by park visitors, vendors, and other
members of the public, as well as Department staff, related to the
proliferation, in certain parks, of expressive matter vendors and the
impact they can have on parkland and other park visitors.  In fact, in
the absence of Department rules regarding expressive matter vendors,
the number of these vendors combined for Battery Park, Central Park,
and Union Square Park has almost tripled since 2001, when the
Department ended its old lottery system for vendor permits in these
parks pursuant to the New York City Administrative Code.  This
dramatic increase in the number of vendors has resulted in changed
conditions in certain parks, which required the Department to develop
regulations in order to strike a balance between expressive matter
vendors and other park visitors, and address other concerns related to
maintaining and operating open space under the jurisdiction of the

For example, expressive matter vendors at Union Square Park have
increased, and continue to increase, in number to the point where they
occupy almost the entire south-west corner of the park.  This not only
presents a concern regarding potential hazardous and unsafe conditions
stemming from undue congestion and pedestrian gridlock, it also
detracts from the experience of those park visitors who wish to
experience and enjoy the park in other ways.

Therefore, to accommodate the interests of a broad range of park
visitors, including the interests of expressive matter vendors who
wish to operate on parkland, the proposed rules establish general park
locations where vendors may operate and minimum requirements regarding
vending activity, such as the set-up and size of display stands.
These rules follow many of the provisions of the New York City
Administrative Code that regulate vendors who operate on the City’s
streets, but have been adapted to address the unique use and nature of
property under the Department’s jurisdiction.

The proposed rules also include additional regulations in and around
the three parks most impacted by expressive matter vendors (certain
designated areas of Central Park, Union Square Park and Battery Park),
and the park most likely to also be significantly affected by
expressive matter vendors due to its unique use and character (High
Line Park).  Specifically, the Department has identified locations
within these areas where expressive matter vendors can operate.  In
these locations, the general rules concerning vending, as proposed by
this amendment, are not sufficient to properly regulate expressive
matter vending so as to avoid such areas from being overwhelmed by
vendors in a manner that significantly interferes with the experience
and comfort of those members of the public visiting the parkland in
question.  The Department has, therefore, established specific spots
within these locations that demark the only spaces that expressive
matter vendors can use.  These spots are indicated on the maps
accompanying these rules and will be further indicated by a numbered
Department decal on the specific location of the approved vending
spot. The Department contemplated, among other considerations, the
following factors before determining these designated vending spots:

1) accommodation of park visitors, given the
number of people who regularly use the park in and around the

2) competing uses by other park visitors,
including but not limited to active and passive recreation,
performances, demonstrations, and the viewing of historical monuments
and public art exhibits;

3) the presence of park elements, including but
not limited to trees, tree pits, benches, or park entrances;

4) the presence of street furniture, including
but not limited to bus stops, fire hydrants, cross walks, or subway

5)  the integrity of the overall design of the
park, including but not limited to the need to preserve particular
landscapes or scenic views; and

6)   the presence of any Department facilities or
Department concessions near the location.

Below is a description of the parks that require additional vending
regulations and the conditions that led to the Department’s
designation of specific vending spots therein.

Central Park

Central Park is one of the most visited parks in the City.  In fact,
more than twenty-five (25) million visitors enjoy Central Park each
year, which makes congestion and pedestrian flow along the perimeter
of the park a foremost concern.  Indeed, congestion at the park is
amplified in certain areas by, among other sources, the many
streetscape and park features in an around the park, the presence of
historical monuments and public art exhibits along the southern
perimeter of the park, and the number of hotels and other attractions
proximate to the park.

Streetscape features include subway entrances in the park near Grand
Army Plaza at the southeast corner of the park and at Columbus Circle
at the southwest corner of the park and at 60th Street on the
perimeter of the park.  Also, horse carriages and pedicabs compete for
customers all along Central Park South, from Grand Army Plaza to
Columbus Circle.

Park features include the numerous benches along the park-side of the
sidewalk, frequently interspersed with street trees, and additional
street trees are also found along the curbside of the street.  Other
park features include the many monuments interspersed throughout the
park.  For example, at Columbus Circle there is a 100-foot column
topped by a statute of Christopher Columbus, as well as a monument to
the sailors lost in the explosion of the battleship “Maine.” In
addition, the plaza where the Avenue of the Americas meets Central
Park South features three monumental sculptures of Simon Bolivar, Jose
de San Martin and Jose Marti. At Grand Army Plaza, Fifth Avenue and
Central Park South, there is a sculpture by Augustus Saint-Gaudens of
Civil War General William Tecumseh Sherman, facing the Pulitzer
Fountain. In addition, at Doris Freedman Plaza there are temporary
displays of contemporary sculptures on a continuous basis.
Furthermore, the area between Central Park West between 60th Street
and 79th Street, as well as Wien and Wallach Walks and the East Drive
experience large crowds because of their proximity to the Central Park
Zoo and Wollman Rink.  Finally, Central Park West between 60th Street
and 86th Street is congested around the entrances to the park,
particularly at 72nd Street, because of the large number of visitors
to Strawberry Fields.

Nearby City attractions serve as contributing factors to congestion at
the park in certain areas.  The many museums along Fifth Avenue, such
as the Metropolitan Museum of Art, attract a number of visitors and
cause crowded conditions in the area from East 85th Street to East
79th Street.  Moreover, nearby hotels accommodate a large number of
tourists who tend to make a point of visiting the park during their

Given the above, and taking into consideration all relevant factors,
the Department designated specific locations for expressive matter
vendors located at the perimeter of the park along Fifth Avenue
between East 85th Street and East 60th Street, all of Central Park
South, Wien Walk and Wallach Walk, the East Drive, Central Park West
between 60th Street and 86th Street, Grand Army Plaza, Pulitzer Plaza,
and Columbus Circle.  For all other areas of the park, the general
vending regulations that are set forth under the proposed rules would

Union Square Park

Union Square Park is a congested and heavily used park
that is one of only three parks located within the Manhattan midtown
business district. It is accessible by multiple subway lines, and
located within a commercial and residential area that has become
increasingly busy.  Indeed, during the summer season, up to 200,000
people visit the park a day.  Because Union Square Park is one of the
City’s most popular destinations, despite its relatively modest size,
there are particular challenges that the Department faces when seeking
to address undue congestion while, at the same time, ensuring that the
park is open and accessible to a broad range of park visitors,
including expressive matter vendors.

Streetscape features include three subway entrances located in the
southeast, southwest, and northwest corners of the park, all of which
serve one of the busiest subway stations in the City.  In fact, the
Union Square subway station, which is home to the L, N. Q, R, W, 4, 5
and L lines, is one of the busiest transportation hubs in the City,
serving over 35 million passengers a year.  Moreover, the park is
flanked by busy traffic thoroughfares, including Broadway, Park
Avenue, and 14th Street.

Park features include the steps of the South Plaza, which were
designed as a “Spanish Steps” to allow visitors to sit and congregate.
 Park features also include two monuments in the southern section of
the park, a large equestrian statute of George Washington, which faces
the South Plaza, and a statue of Mohandas Gandhi that is located at
the southern end of the West Plaza.  In addition, the traffic island
southeast of the main body of the park is frequently programmed with
temporary public art exhibits, which attract significant crowds of
park visitors to the South Plaza. The North Plaza, meanwhile, is
currently undergoing renovations and is otherwise home to a popular
Greenmarket that has operated four days a week since 1979.  The North
Plaza is also heavily used for recreation and other activities when
the Greenmarket is not in operation.

Given the unique conditions at the park and taking into consideration
all relevant factors the Department designated spots for expressive
matter vendors on the west side of the park, from 14th Street to 15th
Street, and on the east side of the park, from 14th Street to 15th
Street.  Other areas of the park, however, are reserved for other park
uses, such as passive recreation, musical performances, and other park

Battery Park

Battery Park is home to many unique streetscape and park
features.  These features, combined with the fact that more than four
(4) million people visit the park annually, contribute to the
Department’s concerns over congestion and the ability to accommodate
multiple park uses and visitors.

Streetscape features include the busy bus, subway and ferry stops
located in and around the park.  A subway entrance is located just
inside the northeast corner of the park.  Bus stops for tour, local,
and express busses, meanwhile, are located along the north and east
perimeters of the park.  Moreover, long lines tend to queue within the
park itself for the ferry service to Ellis and Liberty Islands.

Park features include the park’s multiple benches, tree pits, and
gardens.  Park features also include the numerous monuments within the
park, such as the East Coast War Memorial, American Merchant Marine
Monument, Korea War Memorial, the memorial to the World Trade Center
tragedy, and the historic Clinton Castle.

Given these conditions and taking into consideration all relevant
factors, the Department designated spots for expressive matter vendors
along the perimeter of the park.  In addition, because of the
extensive construction work that is currently occurring in the park,
the Department has established temporary locations for these vendors,
which will eventually be replaced with permanent spaces upon the
completion of the work in the park.

High Line Park

High Line Park is one of the newest, and most unique, properties in
the park system.  Originally constructed in the 1930s to lift
dangerous freight trains above Manhattan’s busy streets, the High Line
is now an elevated public park, which will, when complete, serve as a
promenade extending through the West Side neighborhoods of the
Meatpacking District, West Chelsea, and Clinton/Hell’s Kitchen.

Streetscape features include the limited street-level access points to
the elevated park.  Park features include the delicate plantings,
fixed and movable seating options, and narrow walkways therein, all of
which prevent the High Line from accommodating uses that would be
appropriate for other parks, such as active recreation. Indeed, the
overall design of the park emphasizes passive recreation and the
unobstructed views that can be enjoyed from the unique, elevated
vantage point that the park provides.

Given its particular use and design, and taking into consideration all
relevant factors, the Department has designated a limited number of
spaces appropriate for vending in High Line Park.  These spots ensure
that vendors do not unduly interfere with the flow of visitors to the
park, or cause dangerous levels of congestion and pedestrian gridlock
around park entrances.

1 comment:

  1. I appreciate that artists rely on the ability to set up in and around parks as a major component to selling their works, however as a resident of the Union Square neighborhood I have to agree with the approach of the Parks Department. There are days when the area surrounding USQ park is so crowded by these artists and vendors that pedestrians are forced to walk in the street and it is nearly impossible to get to the subway entrance. I think action by the Parks Department to try to reign in the congestion caused by these artists is way overdue. City residents have a right to enjoy the parks without being displaced by these vendors.