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Artists' Fight To Sell On The Sidewalk

by Martha Hostetter, Jan 05, 2004
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Ever since the founding of New Amsterdam, there have been battles over the right to control the public marketplace. The city's well-traveled sidewalks and parks offer enticing places to set up shop, whether you're selling books, art, knockoff purses, or hot dogs.

The most recent battle has been simmering since last March, when a 1991 New York State law that regulated vending expired. Since then, vendors have been proliferating in Times Square, Canal Street, Battery Park, and Fifth Avenue, with their numbers peaking during the holiday season. In October, the Times Square B.I.D. counted 208 vendors in the area, 66 more than in March. Mayor Bloomberg argues that the resulting sidewalk congestion creates a public safety issue, forcing pedestrians to spill out on to the street. This month, the State Assembly is likely to vote on legislation that would revise the old regulations and also place new restrictions on vending. Advocates for artist vendors say the proposed law infringes on their First Amendment rights and threatens their livelihood, and they have sworn to fight it.

Through odd legal quirks, the fate of artist vendors is tied to that of veterans. The old law limited the number of disabled veterans allowed to sell on city streets. Once it expired, veterans could sell anywhere and street artists could follow, thanks to a Department of Consumer Affairs policy that states once a disabled veteran sets up shop on an otherwise restricted street, artists can also set up there legally.

The legislation,which passed in the State Senate in June, would clarify regulations on veteran vendors, allow for fingerprinting of any vendor arrested for vending without a license, and prohibit vending altogether for several blocks around Ground Zero. The bill stalled when Democrats rejected the fingerprinting requirement, which they viewed as a threat to immigrant and minority rights (vendors would get permanent criminal records, even if their license had only recently expired). To its supporters, fingerprinting would be a security measure and a way to deter those without permits from selling. A related bill before the City Council proposes to create a permit system for vendors of written matter in all city parks, even though such a system was found to be unconstitutional in the past. before the City Council proposes to create a permit system for vendors of written matter in all city parks, even though such a system was found to be unconstitutional in the past.

Like immigrants, minorities, and disabled veterans, artist vendors tend to live near the poverty level and make their primary income on the street. While many hawk mass-produced prints of celebrities or landmarks, others sell original art that has not made it into museums or galleries. In the early 1990s, the city began requiring that artist vendors hold licenses, even though vendors of written matter did not need to do so. To protest this, a coalition of vendors formed A.R.T.I.S.T. (Artists' Response To Illegal State Tactics) and filed suit against the city. From 1996 to 2001, the group won a series of cases, including one that the city appealed all the way to the U.S. Supreme Court. The courts found that vendors of paintings, sculpture, prints, and photographs have the same First Amendment rights to free expression as those who sell written matter. A 1996 ruling by the U.S. Court of Appeals for the Second Circuit found that “visual artwork is as wide ranging in its depiction of ideas, concepts, and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection. . . . The sale of protected materials is also protected. . . . Furthermore, street marketing is in fact a part of the message of appellants’ art. Anyone, not just the wealthy, should be able to view it and to buy it.” The courts did not extend First Amendment protections to vendors of crafts, such as jewelry and pottery, though this exemption is now facing legal challenges.

Today, A.R.T.I.S.T. has 1,000 members. The group’s president, the painter Robert Lederman, says that the push to control vending is being led by Business Improvement Districts, which, he believes, want to protect established business interests and clear sidewalks for their own use. He claims that the B.I.D.s want to take out franchises on “street furniture,” such as planters and garbage cans, on which to sell advertising. “There’s been a history of conflict between business interests and vendors,” Lederman says. “In the early part of the 20th century, the Fifth Avenue Association tried to remove Jewish vendors in front of stores. And in the ‘40s Mayor LaGuardia tried to ban vending at a time when there were more vendors than stores, when almost anything could be bought on the streets.”

Some store owners have complained that vending takes business away from rent-paying stores. But there is also evidence that shoppers prefer areas where street life is bustling; one study found that businesses in the Caribbean neighborhood along Flatbush Avenue suffered after unlicensed street vending was shut down.

Lederman and other arts advocates argue that the city currently has enough tools to control vending, including regulations on how and where vendors can sell (20 feet from any storefront and 10 feet from a corner or subway entrance). In addition, the police can close any vending stand under “exigent circumstances,” including sidewalk congestion. According to a report by the Urban Justice Center, the Peddler Squad has become much more aggressive in giving out fines, closing down vendors, and confiscating goods for minor violations.

Jack Nesbitt, who has been selling his paintings on city sidewalks for seven years, was arrested twice last year. The second time, police brought him in for not having a permit (which he didn’t need), and then charged him with other violations, including being too close to a storefront. “They didn’t even pull out a tape measure when they arrested me. I had to take my own time to go to criminal court, where the sentences were dismissed,” Nesbitt says. “Free enterprise needs to start somewhere, and vendors are often the seeds.”

Martha Hostetter has written about the arts for the Village Voice, American Theater and Empire New York.

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