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Pushcart Wars

by Joshua Brustein, Mar 22, 2004
 

 

Community Gazettes, a look at street vendors in:
Banning Street Vendors from Ground Zero
(Lower Manhattan,
Dist. 1)
From Street Vendor To Small Business
(Flatbush, Dist. 40)
Moving Off 125th Street
(Harlem, Dist. 9)

Also, articles by two street vendors in New York City:

• Selling Hotdogs, Getting Ticketed
by Anwar Hussein

• Selling Jewelry, Spending the Night in Jail
by Aeisha

Rich McCormick looked with contempt as a street vendor selling drawings in Times Square tried to talk to a passerby. "Stop bothering him," McCormick snapped, and the vendor backed away.

McCormick, a disabled Vietnam vet, is a street vendor himself, sharing the corner uneasily with several other salesmen of the streets -- the proprietor of a hotdog cart and several men tending tables full of reproduced drawings. McCormick sells five-dollar watches, as he has done for 30 years.

McCormick's outburst at the other vendor came because he was worried that too many pitches would scare the customer away.

But his beef is more general as well. He fully understands why vendors have been the target of much ire, and new legislation. "The problem is these guys," he said pointing to his colleagues; they're clogging up the streets.

The owners of retail stores in the neighborhood feel the same way.

"They're taking away our business and undercutting our prices," Capri Lee, who runs Giftmania on Seventh Avenue near 47th Street, told the New York Post in December. "They don't pay rent, they don't pay taxes, they don't pay anything."

Responding to such complaints, state legislators passed a law this month that bans vending in some of the city's busiest, and most lucrative, street corners. The new law explicitly regulates disabled veterans, who long have been given special exemption from most vending laws. The law also prohibits vending in much of Midtown and in the area around Ground Zero. (See the Community Gazettes story about the vending ban at Ground Zero) The result is a sudden and striking visual change. The large numbers of vendors that lined the streets for the last year are gone.

The law forced McCormick to move from his long-time spot on Seventh Avenue, at 43rd street, but it has not seriously affected him; he only had to move around the corner, to 43rd at Seventh. But that is not the case for other street vendors in the city, who say the changes threaten their livelihood.

To the people on the front lines of the pushcart wars, there are lofty principles involved; it is an often-bitter conflict that pits freedom of speech against freedom of movement, the rights of the disabled against the needs of small business, law versus order, arts versus crafts, good taste versus a good hot dog.

A COMPLICATED SYSTEM

Downtown one day last year, Gretchen Dykstra was offering a load of onions to her customers, one by one, for free.

"The city's vending laws are like an onion," said Dykstra, the city's Commissioner of Consumer Affairs, while each member of the City Council's Consumer Affairs Committee looked at the onions she had given them. "It has many layers, and after a while, one can't help but cry."

The commissioner was offering a much-needed demonstration. In a city with thousands of vendors regulated by three city agencies and a multitude of city and state laws, as well as court decisions on several levels, Dykstra says very few New Yorkers really understand how street vending regulations work.

No one is sure exactly how many vendors there are in the city, but the most common estimate is about 10,000. These vendors fall into a variety of legal categories with different licenses:

Category Number of Licenses Who Licenses and For What
Disabled Veterans 374 Department of Consumer Affairs for non-food merchandise
Veterans 1,304 Non-disabled veterans licensed by the Department of Consumer Affairs for non-food merchandise
General Vendors 853 licensed by the Department of Consumer Affairs for non-food merchandise
Food Vendors 3,000 by the Department of Health; an additional 1,000 in the summer
Parks Vendors 600 Licensed for food or general merchandise by the parks department in city parks
First Amendment Vendors -- No licenses
Unlicensed Vendors -- No licenses

In 1979, the city capped the number of general vendor licenses and food vendor licenses in the city, and there is a waiting list many years long for one of those licenses to become available Discouraged vendors often set up shop illegally, after finding out that they cannot get a license.

"First Amendment Vendors" are those selling written material and certain types of art. They are permitted to vend in New York City without a permit, because their merchandise is protected under the first amendment.

While some unlicensed vendors sell merchandise that would be legal if they did have a license, the city is concerned that vendors also sell bootleg merchandise, a trade that costs the city $1 billion annually, according to the city comptroller's office.

That there are all these different categories, says Dykstra, makes it difficult for the city to establish a reasonable regulation strategy for street vending. It also divides vendors, setting them against each other and causing them to ignore their common interests.

Surely the most contentious consequence of the hodge-podge of laws and regulations is the odd linking of vendors injured in wars with those protected by the first amendment.

Disabled Veterans

The long history of street peddling in New York City is accompanied by a long history of regulation. As far back as 1691, the city passed a law forbidding 'hucksters' to sell anything on the street until two hours after public markets opened. Vending has been banned completely as long ago as the 1700s, and as recently as the 1940s.

Many such laws passed out of use, but in the early 1990s one gained new life. Citing a Civil War era state law that exempted disabled veterans from all city vending regulations, Joseph Kaswan, a disabled World War II veteran, challenged the city's ban on vendors in Midtown. He won in court.

While vendors saw a new market, storeowners thought the newcomers were crowding the sidewalk and creating competition. Business Improvement Districts (BIDs), organizations that represent business owners in specific neighborhoods , lobbied for restrictions on veterans. Largely because of these efforts, Albany passed a law in 1993 creating two tiers of licenses for disabled veterans: blue licenses, which provided prime access, and yellow licenses, with more restrictions on vending locations. The blue would be awarded based on vending seniority.

First Amendment Vendors

New York State gave licenses to disabled veterans that allowed them to go where other licensed vendors could not. New York City declared that vendors selling certain types of material did not need a license at all.

The idea of freedom of expression first entered into New York City's vending law in the early 1980s, when the city council passed a law, in order to comply with the U.S. Constitution, allowing vendors selling books and other written material to ignore the existing city laws regulating street vending. At the time, the law seemed to be a minor one, since few people sold books on the streets.

As more vendors took advantage of this permission, the city decided to limit the freedom of these so-called first amendment vendors. Instead of giving them free access to any streets, the city said that first amendment vendors could only set up on blocks where at least one licensed vendor was also allowed to do business. Since disabled veterans had access to many places that other vendors did not, the fate of these two groups became intertwined.

Meanwhile, through court actions brought by artists , the definition of what material the city's first amendment law protects has expanded. Vendors selling visual art, including reproductions of original art, do not need a city license; the city also considers DVDs and CDs as first amendment-protected expression, unless they are bootlegged copies of copyrighted material. But those who want to sell jewelry or crafts are told they must get a vending license before hitting the streets.

THE NEW LAW

Starting in March of 2003, the number of vendors in Midtown began to increase dramatically. According to the Times Square Business Improvement District, the number of vendors on Times Square sidewalks rose by 50 percent between April and October, mainly along Seventh Avenue, Broadway, and 42nd Street.

The reason for the increase was that the law limiting the number of disabled veteran vendors had expired, and the nineteenth century law that gave them free reign went back into effect. Veteran vendors rushed back to Midtown, with first amendment vendors in tow.

Lawmakers used the opportunity in having to write a replacement law to try to deal with what they saw as the many problems with vendors. One provision was proposed, for example, that would fingerprint vendors brought in for licensing violations; another would have added extra controls on first amendment vendors.

These added provisions ground the process to a halt. Meanwhile, almost a year passed, with ever-larger numbers of vendors working the Midtown streets.

When the bill was passed, most far-reaching provisions had been removed. The law increased the number of licenses for disabled veterans to vend in Midtown, but banned them from the avenues, and tightened regulations on how a vendor must set up his cart to allow pedestrian flow.

One unrelated provision was also enacted. Since 9/11, heavy foot traffic in Lower Manhattan from tourists visiting Ground Zero attracted large numbers of vendors. The area around Ground Zero -- a box bordered by Broadway on the east, Vesey on the north, West Street on the west and Liberty street on the south -- was also placed off-limit to vendors.

Congestion was cited as the cause for banning vending near Ground Zero, the same logic that is used to restrict street vending elsewhere in the city. But the decision was also made because many felt that it was inappropriate to vend near the site of such tragedy. Because the new law imposes restrictions at least in part to avoid offending people, some art vendors have warned that it sets a dangerous precedent.

"This law was based on the idea that vending might offend somebody, somewhere. Every time I set up I'm offending somebody," said Robert Lederman, the head of the art vendors group A.R.T.I.S.T. "I sell political art."

COMPLAINTS ABOUT VENDORS

"A band of flower peddlers infests my neighborhood along Fifth Avenue from 8th Street to 12th Street. They are dirty, defiant, unlicensed peddlers, and the flowers they sell last about twenty minutes," complained Deputy Mayor Henry H. Curran. "I hear many complaints from people who live about there and whose passage along the sidewalk is actually blocked by these peddlers thrusting their wares on passers-by."

Though Curran was speaking in 1938, variants of the same argument are in common use today. Vendors cause congestion, say critics, dirtying up a neighborhood with useless merchandise.

Many of the complaints come from business improvement districts, groups that seem to be in near-constant conflict with street vendors. These groups complain that vendors using the city's busiest sidewalks cause dangerous congestion. But others argue that a comprehensive sidewalk policy -- one addressing street planters, information kiosks, and ever-present scaffolding as similar forms of sidewalk blockage -- would make more sense than blaming vendors for it all.

Complaints of congestion are often accompanied by harsh words directed at vendors themselves, particularly, nowadays, first amendment vendors.

"I sure as hell don't have any place in my heart for the people who took advantage of [disabled veterans]," said Michael O'Connor, of the Alliance for Downtown New York, the business improvement district for Lower Manhattan. "We were really taken aback by the fact that everybody who was selling a comic book or baseball cards, or anything that is loosely protected by the first amendment -- that they were just all over the place."

City Solutions, From Vendor Markets To Increased Fines

Today, city and state officials usually speak in more diplomatic terms. Former Mayor Rudolph Giuliani, however, was not shy with his disdain for vendors. He grouped them with vandals and panhandlers as the targets of his quality-of-life campaign, earning him the enduring enmity of vendors throughout the city.


Malcolm Shabazz Market

More in Community Gazettes: Harlem: Moving Off 125th Street

Giuliani's quality of life campaign closed streets to vendors, including large-scale removals of vendors from 125th street in Harlem (See Harlem Community Gazettes for related article) and Fulton Street in Brooklyn. As an alternative, the city offered vendor markets, which were located in abandoned lots near their previous spots. Fred Leopold-Hooke, the director of the city's Department of Small Business Services micro-enterprise project, said these markets would keep vendors from congesting streets, while also allowing them to turn themselves into legitimate businesspeople.

While Leopold-Hooke claims success for the program, vendor groups and the Department of Consumer Affairs criticize many of the markets set up as replacement sites for the streets. Markets, they say, have not solved congestion problems, and have hurt vendors economically.

Rejecting one alternative is not the same as creating another, though. Dykstra concedes that the city does not have a clear picture of what needs to be done. The Department of Consumer Affairs is working on a single publication that would clarify the regulations for vendors. In addition, several laws concerning vendors are being considered which would:

  • Increase fines for license violations
  • Regulate first-amendment vendors in city parks
  • Require that vendors keep the areas in which they vend free from litter, including litter that is not their own

The Department of Consumer Affairs sees the freedom of first amendment vendors as the major obstacle to a wider solution to vendor regulation, and says it is considering possible solutions.

COMPLAINTS FROM VENDORS

In the children's book The Pushcart War, New York's street vendors band together after being accused of clogging city streets, and engage in full-on warfare with the real culprits -- truck drivers. Through military and public relations tactics, the vendors force the truck drivers to compromise on the vendor's terms, fixing the congestion of the streets and earning the admiration of millions of New Yorkers.

In New York today, it's not so easy.

Vendors do feel that they are being unfairly scapegoated, not by a conspiracy among truck drivers, but through the efforts of business improvement districts. Using congestion as an excuse, say vendors, business improvement districts try to remove them because they want to eliminate competition, or because they feel vendors make their neighborhood seem downtrodden.

But because different groups of vendors have different interests, they are often at odds with one another. Some veteran vendors are wary of -- or outright hostile to -- the first amendment vendors; native-born vendors sometimes disparage illegal immigrants; licensed vendors worry that unlicensed vendors make it harder on them.

As a result, the concerns the vendors have in common go unaddressed, according to Sean Basinski, the head of the Urban Justice Center's Street Vendor Project (in pdf format). "Imagine it from the city's perspective," he said. "How can you negotiate with vendors when they are not united?"

Police Harassment

If there is one issue that runs across these lines, though, it is the antagonistic relationship that vendors have with police. The arbitrary way that vending laws are enforced, say vendors, often has a bigger effect on their day-to-day lives than the laws themselves. Practically every vendor has stories about getting tickets from police officers when they felt they were set up legally. Vendors have little trust in officers' respect for the law; many doubt that the police even understand it.

"The police come, sometimes they don't even get out of the van, and they say "let me see your license," said Anwar Hussein a hot-dog vendor on Canal Street who says he got 27 tickets last year. (See "Selling Hot Dogs, Getting Ticketed" by Anwar Hussein) "When we give them the license, they don't ask anything, they just write a ticket." Hussein complains that he receives many tickets for being too close to a store, though he has measured the distance and offers to do so for the police who issue tickets. After presenting a judge with photos of the scene, he said, his tickets are often thrown out.

Prompted by such complaints, the Urban Justice Center and other groups have gotten the police to agree to a meeting this week.

But some vendors have simply resigned themselves to repeated confrontations with police.

Aiesha, who continued to vend even after she was told that even the waiting list for general vendors licenses was closed, says that she is arrested too often to keep track. (See "Selling Jewelry, Spending The Night in Jail") Stories like this prove that the total number of vending licenses should be raised, some say. City officials say that this is not off the table -- though there is no current activity to implement such a plan.

"They keep coming, and coming," says Aiesha, who asked that her last name not be used. "They are asking me for the license, they know I don't have it... They say "you're going to have to come with us", and I say 'Okay, I'll come with you. You do your job, I'll do mine.'"

Though Aiesha has spent countless nights in jail, she says that she loves what she does -- and that her customers seem to love her too.

"Besides," she asks, "can you imagine New York without street vendors?"

 


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