Vet Planter Hearing

8/4/2019 Vet Planter Hearing

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From: "Robert Lederman"

Date: Wed Jun 2, 2004 10:01 am

Subject: Vet Vendor Hearing Transcript

Vet Vendor Hearing Transcript

Below is the official transcript of the 5/13/04 hearing inFederal Court on thedisabled veteran vendor law. There are a few errors in thetranscript, most ofwhichare grammatical. One factual error is at line 22 on pg 11, I saidFifth Avenue

betweenCentral Park and 30th Street not 63rd Street. You will note thatmany of thethemesdiscussed in my emails over the past year or so about thedisabled veteranvendor lawcame out in the hearing and were confirmed by City officals, someof thosebeing:

1. Thousands of planters are being installed all over Manhattanfor the specific

purpose of displacing legal vendors2. The City had more than enough laws on the books to regulatedisabled vets,artistsand all other vendors WITHOUT passing any new ban on vending, andit wasagressively enforcing those laws at the same exact time the city

was publiclyclaimingthey had, "no way to regulate vendors."3. The disabled vet law was really about getting rid of artistsall along.4. The City's policy is not about preventing congestion but about


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selectivelydisplacing vendors. While banning 300 disabled vets from Midtown,the cityjustifies

allowing a thousand food vendors to sell there; and it's gettingready toinstall 4,000sidewalk advertising kiosks in the very same areas that aresupposedly so,"congested."

I was able to get the issue of planters on the record in a uniqueway. NYPD Lt.D'Onofrio's testimony affirming that the planters are there to

displace vendorsis thefirst time this rather obvious point that all vendors know abouthas ever beentestifiedto under oath by any City official. -RL------------------------------------------------------

145D5SMIH hearing

1 UNITED STATES DISTRICT COURT1 SOUTHERN DISTRICT OF NEW YORK2 ------------------------------x23 RICHARD SMITH, et al.,34 Plaintiffs,45 v. 04 Civ. 3017 (RMB)5

6 GRETCHEN DYKSTRA, et al.,67 Defendants.78 ------------------------------x8


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9 May 13, 2004910 Before:10

11 HON. RICHARD M. BERMAN,1112 District Judge1213 APPEARANCES1314 MCCALLION & ASSOCIATES14 Attorneys for Plaintiffs15 BY: KENNETH F. McCALLION15 ROBERT GOODMAN

1616 NEW YORK CITY LAW DEPARTMENT17 BY: SHERYL KAMHOLZ NEUFELD17 VIRGINIA WATERS181920212223

2425SOUTHERN DISTRICT REPORTERS

245D5SMIH hearing1 (Case called)2 THE COURT: I was saying that the papers are adequate3 for me to make a decision but the plaintiffs have asked for4 time to present witnesses. Defendants have indicated that they

5 do not need to present witnesses. So, what I have decided is6 to allow each side a half hour to argue and/or have direct7 testimony and I will monitor the clock. It's now 10 minutes to8 3:00.9 So, that means that the plaintiffs have until 3:20 and10 you can call your first witness.


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11 MR. McCALLION: Thank you, your Honor. Kenneth12 McCallion for plaintiffs.13 Just by way of introduction, in addition to the equal14 protection and due process argument we raised, some of the

15 cases also, although we didn't highlight it, implicate the16 First Amendment and we would just like to cite --17 THE COURT: If you are going to call witnesses you18 ought to get to them because I am seriously thinking about the19 time constraints. I have other issues and other matters to20 deal with, so if you have any witnesses, now is the time.21 MR. McCALLION: Yes. My colleague, Mr. Goodman, will22 question Robert Lederman.23 THE COURT: Mr. Lederman.24 ROBERT LEDERMAN,

25 called as a witness by the Plaintiffs,SOUTHERN DISTRICT REPORTERS

345D5SMIH hearing1 having been duly sworn, testified as follows:2 DIRECT EXAMINATION3 BY MR. GOODMAN:4 Q. Mr. Lederman, are you currently working?5 A. Yes.

6 Q. What is your profession?7 A. I'm a vendor. I'm a street artist.8 THE COURT: Counsel, we usually use the podium and the9 microphone.10 Q. And how long have you been a vendor?11 A. I have been vending for 41 years.12 Q. And are you affiliated with any vendor-related13 organizations?14 A. I'm the president of ARTIST, A-R-T-I-S-T; that stands for15 Artists' Response To Illegal State Tactics. That's the group

16 that represents the First Amendment vendors in New York.17 Q. Now, would it be fair to say that your organization lobbies18 for vendors' rights?19 A. Yes.20 Q. And you have been involved in litigations with the City of21 New York, State of New York?


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22 A. Yes.23 Q. Now, over the weekend you have indicated that you took some24 photographs pertinent to the issue of congestion which hasbeen

25 implicated in this case, and I will present --SOUTHERN DISTRICT REPORTERS (212) 805-0300

445D5SMIH Lederman - direct1 THE COURT: Implicated where?2 MR. GOODMAN: I think in our correspondence with your3 Honor, one of the issues that we wanted to --4 THE COURT: You just said, "over the weekend he5 indicated," I don't know what weekend and who he indicated it

6 to.7 MR. GOODMAN: Mr. Lederman reports to have taken8 photographs in the midtown area.9 THE COURT: Did he?10 MR. GOODMAN: Yes, he did.11 THE COURT: Okay, ask him.12 BY MR. GOODMAN:13 Q. Mr. Lederman, you took photographs in the midtown area?14 A. Yes. This weekend.15 Q. Where did you take photographs of?

16 A. I took photographs throughout the area that's involved in17 the so-called midtown core, that's the subject of thislawsuit.18 Q. And what pictures were you taking, what was the focus?19 A. The subject were thousands of sidewalk planters have been20 installed along the curbsides on these blocks.21 Q. And I am going to present to you, for identification,22 documents which I want you to identify for the Court.23 I present this to counsel and to your Honor, if I may24 approach, and to the witness. We will have it marked as

25 Plaintiff's Exhibit A, for identification.SOUTHERN DISTRICT REPORTERS (212) 805-0300

545D5SMIH Lederman - direct1 Mr. Lederman, what does this document purport to be?


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2 A. These are photographs of what are called planters that have3 been installed by the Business Improvement District --4 MS. NEUFELD: Objection.5 THE COURT: Overruled.

6 THE WITNESS: -- throughout midtown Manhattan and7 specifically in the area that's called the midtown core.8 Q. What are planters?9 A. Planters are large concrete boxes filled with earth,10 occasionally with actual plants in them.11 Q. This past weekend you indicated that you had gone to12 midtown to take photographs of these planters; when did yougo?13 A. I went there at 6:00 in the morning.14 Q. And why did you pick that time to frequent that area?

15 A. So that I could photograph the planters on an empty street16 so that they would be clearly visible, and the relationship of17 the planter to the sidewalk itself would be very clear.18 Q. Now, these photographs, you took them yourself, sir?19 A. Yes.20 Q. And you had them developed? Are they digital?21 A. They're digital photographs. I printed them out from my22 computer.23 Q. And did you copy them for counsel and for the Court and24 opposing counsel?

25 A. Yes.SOUTHERN DISTRICT REPORTERS (212) 805-0300

645D5SMIH Lederman - direct1 MR. GOODMAN: Your Honor, I would move that these2 photographs be admitted in evidence so we can ask questions.3 MS. NEUFELD: Objection, your Honor.4 THE COURT: I will allow them.5 Go ahead.

6 Q. Now, Mr. Lederman, would you direct the Court to particular7 photographs that you think are pertinent to your presentation8 regarding these planters?9 A. Your Honor, what I can say about these photographs, and10 this is based on not only my direct experience as a vendor but11 as someone whose discussed the vending issue with the past


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four12 commissioners of consumer affairs, the past three mayors.13 THE COURT: Right, right. Go ahead.14 THE WITNESS: Each of these planters has been

15 installed in what was previously a legal vending spot. And you16 will notice where there is a space where --17 MS. NEUFELD: Objection.18 THE COURT: Overruled.19 THE WITNESS: Where there is no planter, it's in most20 instances because that is an illegal vending spot that's less21 than 20 feet from a door.22 THE COURT: Okay.23 BY MR. GOODMAN:24 Q. Now, are there any particular illustrations that you would

25 like to direct the Court's attention to and explain?SOUTHERN DISTRICT REPORTERS (212) 805-0300

745D5SMIH Lederman - direct1 A. Well, if you go to the tenth page -- I'm sorry, they're not2 numbered, the one that says Fifth Avenue in the 50's at the top3 and below it 53rd Street between Fifth and Sixth, this is an4 archetypal example of what I am talking about, this bottom5 photograph. That's a location where, on 53rd Street, it is a

6 very popular location for vendors. There is a lot of people7 that walk through there, there are two museums on the block, it8 is an excellent place to make a living as a vendor.9 There have been countless complaints over the years by10 landlords about the vending there, to police.11 MS. NEUFELD: Objection. Hearsay.12 THE COURT: Sustained.13 THE WITNESS: Which --14 THE COURT: Sustained means don't answer.15 THE WITNESS: Okay.

16 BY MR. GOODMAN:17 Q. I'm going to ask you some questions about the photographs18 themselves, Mr. Lederman.19 Now these, let's take the bottom photograph, 53rd20 between Fifth and Sixth Avenue; when you were photographing21 these things and analyzing how big they were, what would you


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22 say their dimensions were?23 THE COURT: You have got them in evidence, I can see.24 And you are going to run out of time unless you get to the25 point.

SOUTHERN DISTRICT REPORTERS (212) 805-0300

845D5SMIH Lederman - direct1 MR. GOODMAN: Well, I think it's hard from the2 photographs to tell how big these constructions are.3 THE COURT: If you want. It's your time, but you are4 going to run out of time.5 THE WITNESS: These planters literally run from the6 Fifth Avenue, 53rd Street corner, and entire half block which

7 was the location where all the vendors had previously used this8 legal sidewalk.9 Q. And just because our time is short, Mr. Lederman, what is10 street furniture? Are you familiar with the term street11 furniture?12 A. Yes.13 Last year the city council passed the street furniture14 initiative. The bill allows a corporation to bid for a15 contract which will be assigned this June to install 4,00016 sidewalk advertising kiosks, all of which will be located by

17 the curb in what are presently legal vending spots.18 MS. NEUFELD: Objection.19 THE COURT: Overruled.20 Q. Now, these kiosks, in your going around the city as a21 vendor, are there examples of kiosks?22 THE COURT: I don't understand what that means, going23 around the city as a vendor.24 Q. In your capacity as a street vendor, sir, have you seen25 examples of street furniture?SOUTHERN DISTRICT REPORTERS (212) 805-0300

945D5SMIH Lederman - direct1 A. Yes.2 Q. What have you seen?3 A. Well, one of the notable examples that you can observe is


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4 that the business improvement districts in midtown have removed5 the existing independent news boxes that belonged to each of6 the newspapers --7 MS. NEUFELD: Objection.

8 THE COURT: Overruled.9 THE WITNESS: -- and installed their own street10 furniture news box, which usually has seven slots, and theyget11 to decide which newspapers are allowed to be sold on that12 block.13 Q. Is there advertising that is present on the street14 furniture?15 A. On those, that particular example there isn't. In Times16 Square, the Times Square Business Improvement District

recently17 installed 500 four-sided advertising kiosk trash cans on which18 they rent out each side for $500 a month.19 All that money goes to the Times Square BID, none of20 it goes to the city and it's all on city-owned property.21 MS. NEUFELD: Objection.22 THE COURT: I'm not understanding how any of this is23 relevant to the application you have for preliminary24 injunction.25 MR. GOODMAN: Well, your Honor, do you want me to


1045D5SMIH Lederman - direct1 explain, your Honor?2 THE COURT: I want you to present testimony that's3 relevant to your application for preliminary injunction and to4 do it in the time constraints that we have.5 BY MR. GOODMAN:6 Q. Mr. Lederman, one final area, and that is where have you

7 been vending, sir, when you have been vending?8 A. Over the years I have vended in every place in Manhattan;9 quite a bit in midtown, Times Square, 53rd Street, Fifth10 Avenue.11 THE COURT: What do you vend?12 THE WITNESS: I sell my own artwork and political


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13 materials.14 THE COURT: And you do that pursuant to a license?15 THE WITNESS: No. I won a federal lawsuit that says I16 don't need a license; based on free speech.

17 THE COURT: So you are, in fact, a First Amendment18 vendor like as a bookowner?19 THE WITNESS: Correct.20 THE COURT: Book seller, etc.21 And you are entitled to vend anywhere? Anywhere?22 THE WITNESS: Well, the city made a rule that in the23 midtown core on the restricted streets I can only vend ifthere24 is a disabled veteran set up on the street.25 THE COURT: Wait a minute. I'm just talking about


1145D5SMIH Lederman - direct1 your ability to vend. You're a particular kind of vendor,2 First Amendment as it were, right?3 THE WITNESS: Yes. Yes.4 THE COURT: And you are entitled to vend where?5 THE WITNESS: There are numerous restricted streets.6 Other than that I can vend anywhere but if a vet, a disabled

7 vet --8 THE COURT: Wait a minute. There are numerous9 restricted streets that even a First Amendment --10 THE WITNESS: Correct.11 THE COURT: -- person can't sell books, etc.?12 THE WITNESS: Unless a disabled vet is set up there.13 MR. GOODMAN: Your Honor, I may be able to help.14 THE COURT: Hold on a second.15 Explain that again or maybe give me an example.16 THE WITNESS: I have a document that demonstrates it

17 exactly.18 THE COURT: Give me a live example.19 THE WITNESS: Fifth Avenue.20 THE COURT: Fifth Avenue and what?21 THE WITNESS: Fifth Avenue between Central Park and22 63rd street, the entire length is restricted.


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23 THE COURT: So nobody can vend there.24 THE WITNESS: Except, until this new law was passed,25 disabled veteran vendors.SOUTHERN DISTRICT REPORTERS (212) 805-0300

1245D5SMIH Lederman - direct1 THE COURT: They can vend there.2 THE WITNESS: They could vend there.3 THE COURT: And so you can too?4 THE WITNESS: As long as one of them is there an5 unlimited number of First Amendment vendors can also set up6 there.7 THE COURT: I understand. Okay.

8 MR. GOODMAN: Your Honor, we have some documentation.9 THE COURT: Show it to counsel?10 MR. GOODMAN: Yes.11 BY MR. GOODMAN:12 Q. Mr. Lederman, can you identify that document for the Court13 and how you got it?14 A. That's a letter written by the former commissioner of the15 department of consumer affairs, Jane Hoffman, June 2000, to16 Duane Jackson, president of the Vietnam Veterans of America.17 Q. How did you come by getting that document, sir?

18 A. I was given it by the Department of Consumer Affairs in19 response to a FOIL request -- Freedom Of Information Law.20 MR. GOODMAN: I would move, your Honor, that this be21 admitted into evidence as Plaintiff's Exhibit.22 MS. NEUFELD: Object.23 THE COURT: Okay.24 BY MR. GOODMAN:25 Q. Mr. Lederman, as you read this letter, what is yourSOUTHERN DISTRICT REPORTERS (212) 805-0300

1345D5SMIH Lederman - direct1 understanding of what its import is?2 THE COURT: I think it is what he just explained,3 isn't it.4 THE WITNESS: Yes, your Honor.


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5 THE COURT: I got it.6 MR. GOODMAN: Related to that, just to complete the7 record, your Honor, I just have an additional document I want8 to submit to complete the record. I'm not going to ask any

9 questions about it, I am going to have it admitted, unless10 counsel objects.11 Q. Mr. Lederman, can you just identify that document for the12 Court?13 A. It's an NYPD internal memo from the police commissioner's14 office issued on August 15th, 2003 concerning enforcement15 against disabled veteran vendors.16 MR. GOODMAN: I would like to have that moved into17 evidence, your Honor.18 MS. NEUFELD: Your Honor, I object on the basis that I

19 don't know that this is still valid police policy.20 THE COURT: Do you?21 MR. GOODMAN: I don't have any information that it has22 been countermanded.23 THE COURT: On your cross-examination you may raise24 that issue.25 I will take it and allow you to cross examine.SOUTHERN DISTRICT REPORTERS (212) 805-0300

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45D5SMIH Lederman - direct1 THE COURT: Anything else for this witness?2 MR. GOODMAN: No. No, your Honor.3 THE COURT: Cross-examination?4 MS. NEUFELD: Yes, your Honor.5 THE COURT: Go ahead.6 CROSS EXAMINATION7 BY MS. NEUFELD:8 Q. Good afternoon, Mr. Lederman.9 A. Good afternoon.

10 Q. Mr. Lederman, you would agree, based upon what you just11 testified, that the more disabled veteran vendors that are12 allowed in midtown, the more opportunities that FirstAmendment13 vendors will have to -- you would agree that the more disabled14 veteran vendors that are given access to midtown Manhattan


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15 would enable First Amendment vendors to have that much more16 access to midtown Manhattan as well, wouldn't it?17 A. No, I would not agree to that.18 THE COURT: Is this a suit about First Amendment

19 vendors?20 MR. GOODMAN: No, your Honor, it's not.21 THE COURT: So I don't get the relevance anyway.22 MS. NEUFELD: The relevance is that what Mr. --23 THE COURT: It doesn't really matter. It is not a24 suit about First Amendment vendors, it is a suit aboutdisabled25 vendors, right?SOUTHERN DISTRICT REPORTERS (212) 805-0300

1545D5SMIH Lederman - cross1 MS. NEUFELD: That's right. I believe, though, that2 one of plaintiff's arguments is that the streets are not3 congested and that if in fact they are --4 THE COURT: Well, I haven't heard anything about5 congestion so do you have anything about that that is germane6 here? Do you want to find out if this is still the law or not,7 if you don't know yourself?8 BY MS. NEUFELD:

9 Q. Mr. Lederman, are you aware that this operations order 133310 that plaintiff's counsel showed you, the police department11 operations order, was superseded when the new disabledveterans12 vending law came into effect in March 2004?13 A. Yes.14 THE COURT: So, is this in practice now or not?15 THE WITNESS: According to the city, nothing is in16 practice since they're not yet, according to them, enforcing17 the vet law.

18 THE COURT: I got it.19 So this operation is not current? If you know.20 THE WITNESS: Part of it absolutely are current.21 THE COURT: Okay.22 THE WITNESS: What it refers to is parts of the23 vending law that the city can use to enforce against disabled


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24 veterans apart from the disabled veteran law, the existing25 time, place, and manner restrictions.SOUTHERN DISTRICT REPORTERS (212) 805-0300

1645D5SMIH Lederman - cross1 THE COURT: Which part of this is current?2 MS. NEUFELD: Your Honor, if you would like, we have a3 police lieutenant here.4 THE COURT: That's all right.5 THE WITNESS: Everything from 3 down.6 THE COURT: 3 through 10?7 THE WITNESS: Basically 3 through 10 I would say, is8 still being enforced right now, on the streets.

9 THE COURT: All right, thanks.10 Anything else?11 BY MS. NEUFELD:12 Q. Yes, one other area.13 Mr. Lederman, you showed us some pictures of areas in14 midtown Manhattan at 6:00 a.m. this past weekend. I would like15 to show you some different pictures, these pictures have been16 marked as Defendant's Exhibit A, B and C, for identification.17 Now, Mr. Lederman, you stated earlier that you have18 had occasion to vend in midtown Manhattan, is that right?

19 A. Yes.20 Q. And you have had occasion to vend in the area known as21 Times Square?22 A. I have.23 Q. Were you able to vend in those areas at all during other24 periods; between March 2003 and March 6, 2004?25 A. I was able to, yes.SOUTHERN DISTRICT REPORTERS (212) 805-0300

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45D5SMIH Lederman - cross1 Q. And would you say that these three pictures fairly and2 accurately represent the types of things that you would see in3 the midtown area between March of 2003 and March of 2004?4 A. Well, Exhibit A and Exhibit B, I happen to be a5 photographer, are taken with a telephoto lens which compresses


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6 images, that's why they appear to have people very close7 together.8 But, if you look at Exhibit C, which is not using a9 telephoto lens, you can see that there is a great deal of space

10 between the pedestrians, presumably these were taken at the11 same time.12 THE COURT: Where do you see a great deal of space13 between pedestrians in Exhibit C?14 THE WITNESS: Well you can see that, compared to15 Exhibit A, which is presumably the same treat.16 THE COURT: Let's look at Exhibit C. Now, I'm trying17 to figure out where you see a great deal of space between18 pedestrians.19 THE WITNESS: There is actually one, two, three, four,

20 five, six, seven, eight, nine, 10 -- there is actually less21 than 20 pedestrians in that photograph.22 THE COURT: In C?23 THE WITNESS: That are vendors. Many of the people24 that you actually see are vendors.25 THE COURT: You think there are less than 20.SOUTHERN DISTRICT REPORTERS (212) 805-0300

1845D5SMIH Lederman - cross

1 THE WITNESS: I'm estimating. I could take the time2 to view each one carefully.3 BY MS. NEUFELD:4 Q. You would agree that in Exhibit C there are people walking5 in the street where cars are supposed to be, would you not?6 A. I grew up in Brooklyn, people walk in the street where I7 grew up and there is no vendors.8 THE COURT: That is not the question.9 THE WITNESS: I understand.10 THE COURT: And this is not, incidentally, just

11 argument, people trying to persuade whatever. The idea is to12 answer the question.13 THE WITNESS: I understand.14 THE COURT: Candidly.15 She asked if people were in the streets.16 THE WITNESS: I do see two individuals walking in the


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17 street; yes.18 MS. NEUFELD: Your Honor, at this time defendants move19 Exhibits A through C into evidence.20 MR. GOODMAN: I object your Honor.

21 THE COURT: Why?22 MR. GOODMAN: Well, I mean we don't know that the, we23 don't know how the photographs were taken, if they were taken24 with a telephoto lens, as the witness indicated, that could25 affect how one interprets --SOUTHERN DISTRICT REPORTERS (212) 805-0300

1945D5SMIH Lederman - cross1 THE COURT: Is that your objection, whether or not

2 they were taken with a telephoto lens?3 MR. GOODMAN: Well, it would be nice to speak to the4 photographer to find out exactly the circumstances under which5 these were taken, where they were taken, what time of the day6 they were taken.7 THE COURT: I will take them, subject to connection.8 (Defendant's Exhibits A, B and C received in evidence)9 THE COURT: Let's have your next witness.10 Thanks. Thanks very much, Mr. Lederman.11 THE WITNESS: You're welcome.

12 MR. McCALLION: We will call Philip Checkamian.13 THE COURT: Can you state and spell your name for the14 record?15 PHILIP CHEKAMIAN,16 called as a witness by the Plaintiffs,17 having been duly sworn, testified as follows:18 DIRECT EXAMINATION19 BY MR. McCALLION:20 Q. Yes, Mr. Chekamian; you are a United States -- veteran of21 the U.S. military service, is that correct?

22 A. Correct.23 Q. Which branch?24 A. The Marine Corps.25 Q. And do you have a disability rating with the Veterans'SOUTHERN DISTRICT REPORTERS (212) 805-0300


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2045D5SMIH Chekamian - direct1 Administration?2 A. Yes, I do.

3 Q. And did there come a time when you received a license to4 vend within the City of New York from the Department of5 Consumer Affairs?6 A. Yes, sir.7 Q. Approximately when was that?8 A. About '93.9 Q. What kind of license was that?10 A. Disabled vet vendor's license.11 Q. Is that a citywide disabled veterans license?12 A. At the time it wasn't.

13 THE COURT: At the time it was not?14 THE WITNESS: At the time it was not.15 Q. And did you have to provide the Department of Consumer16 Affairs of New York City with any information or evidence of17 your disability status and the fact that you have, were18 honorably discharged from the United States armed forces?19 A. Yes, sir.20 Q. And now, when you received a license from New York City --21 let me ask you, are you familiar with the term "yellowlicense"

22 or "blue license"?23 A. Yes, sir.24 Q. And the holders of yellow licenses and blue licenses, are25 they all disabled veterans?SOUTHERN DISTRICT REPORTERS (212) 805-0300

2145D5SMIH Chekamian - direct1 A. Yes, sir.2 Q. And describe for the Judge, indicating the time period,

3 what kind of license that you held issued by the New York City4 Department of Consumer Affairs?5 A. I was issued a blue license.6 Q. And approximately when was that?7 THE COURT: '93.8 THE WITNESS: Later.


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9 THE COURT: Later.10 What kind of license did you get in '93?11 THE WITNESS: That was the geneal vendor's license.12 THE COURT: And then the blue and yellow regime came

13 later?14 THE WITNESS: Yes, sir.15 THE COURT: So when did you get the blue,16 approximately, if you know?17 THE WITNESS: '98, '99, something like that.18 THE COURT: Does that develop the distinction between19 blue and yellow?20 THE WITNESS: Yes, sir.21 BY MR. McCALLION:22 Q. Drawing your attention to, approximately, to the year 1998,

23 please describe for the Court the circumstances by which you24 came to obtain a blue vendor's license.25 A. Well, the night before they were going to issue the licenseSOUTHERN DISTRICT REPORTERS (212) 805-0300

2245D5SMIH Chekamian - direct1 I got a phone call from another vet vendor, Duane Jackson, to2 get down there first thing in the morning to 42 Broadway,3 Department of Consumer Affairs, that they were issuing blue

4 licenses for midtown. Had to be there first thing in the5 morning.6 THE COURT: Before that time you were -- your license7 enabled you to vend where?8 THE WITNESS: Outside of midtown. Midtown was shut9 down to everybody.10 THE COURT: Everybody meaning veterans or not veteran;11 everybody?12 THE WITNESS: Everybody except food vendors.13 THE COURT: Except blue vendors.

14 THE WITNESS: Except food vendors.15 BY MR. McCALLION:16 Q. Was Mr. Duane Jackson who made the call to you, was he a17 member of the so-called veterans committee?18 A. Yes, sir. He had his own organization. I don't remember19 the proper name of it.


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20 Q. Now, prior to the time to receiving a call from Duane21 Jackson, had you become aware in any way, throughadvertisement22 or a letter to you from consumer affairs or in any other way,

23 that the New York City Department of Consumer Affairs wasgoing24 to be issuing these blue or specialized licenses?25 A. No, sir.SOUTHERN DISTRICT REPORTERS (212) 805-0300

2345D5SMIH Chekamian - direct1 Q. Did Mr. Jackson tell you anything else when you indicated2 he told you to get down to consumer affairs to get a blue

3 license?4 MS. WATERS: Objection. Hearsay.5 THE COURT: What kind of vending do you sell?6 THE WITNESS: Sell everything from t-shirts, wallets,7 pocket books, ties.8 THE COURT: And you have always sold those, that's9 always been your business?10 THE WITNESS: No, sir.11 Since I got my license that's been my only business.12 THE COURT: So that would be since, what, since '93 or

13 '98?14 THE WITNESS: '93, sir.15 THE COURT: You have been a vendor since '93 of those16 kind of products in the city?17 THE WITNESS: Yes, sir.18 THE COURT: And since '98 in midtown?19 THE WITNESS: Yes, sir.20 BY MR. McCALLION:21 Q. Now, sir, when you vend on the street, do you have any22 identification other than the license which you have from New

23 York City which identifies you as a veteran?24 A. We're issued two licenses. One we renew every year and the25 other one states, the blue license, you get that once and it'sSOUTHERN DISTRICT REPORTERS (212) 805-0300

24


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45D5SMIH Chekamian - direct1 yours forever, that you're a disabled vet vendor allowed to2 work in midtown.3 Q. And when you go out on the street to vend there, is there

4 anything on your table or is there anything you wear that would5 reflect your status as a veteran?6 A. Well, I would usually wear a marine corps hat or Vietnam7 vet hat, or t-shirt. I have at ton of t-shirts, U.S.M.C.8 t-shirt.9 Q. When you engage in vending on the streets of New York, do10 you interact with the public in any way as, in your status asa11 disabled veteran?12 A. Oh yes.

13 Between tourists that are veterans that come over to14 say hello and the general public in itself, I guess they like15 to see veterans. You know, we talk to them and give directions16 where they want to go. And sell.17 Q. Now, when you, did you in fact go to the Department of18 Consumer Affairs in or about November of 1998 to get alicense?19 A. Excuse me, I didn't hear that.20 Q. In approximately November of 1998, following the phone call21 from Duane Jackson, did you in fact go to consumer affairs to

22 attempt to get a license?23 A. Yes, sir.24 Q. And did you obtain a blue license?25 A. Yes, sir.SOUTHERN DISTRICT REPORTERS (212) 805-0300

2545D5SMIH Chekamian - direct1 Q. And, approximately, were there other veterans present with2 you at Department of Consumer Affairs when you received the

3 license?4 A. Yes, sir.5 Q. Do you know approximately how many received licenses at or6 about that time?7 A. It was supposed to be 60, sir.8 Q. And do you know approximately how many disabled -- well,


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9 let me ask you. With regard to the veterans which hold blue10 licenses versus those that hold yellow licenses, are they all11 veterans and are they all disabled veterans in both blue and12 yellow categories?

13 A. The only way you can get a blue or yellow license is to be14 a disabled veteran.15 Q. And, to your knowledge, other than the fact that you16 received the phone call and went down to consumer affairs on a17 certain day, do you hold any qualifications that would qualify18 you to hold a blue license as opposed to other disabled19 veterans in New York?20 A. No qualifications at all. It was somebody called me and I21 knew to be there.22 THE COURT: Counsel, I don't want you to run out of

23 time.24 MR. McCALLION: Okay. No further questions, your25 Honor.SOUTHERN DISTRICT REPORTERS (212) 805-0300

2645D5SMIH Chekamian - direct1 THE COURT: Anything on cross-examination?2 CROSS EXAMINATION3 BY MS. WATERS:

4 Q. Mr. Chekamian, I show you what's been marked as Defendant's5 Exhibit D. Can you tell me what that is?6 A. Well, it's a letter explaining about the vendors' advisory7 committee and explaining the new disabled veteran vendors8 legislation.9 Q. Did you receive a copy of that letter?10 A. No.11 Q. Can I show you what's been marked as Defendant's Exhibit E;12 can you tell me what that is?13 A. It's a letter to the veteran vendor that the legislation

14 per veterans advisory boards election.15 Q. And did you receive a copy of that letter?16 A. This is the first time I have seen it.17 Q. Is there a notation up on the upper right hand corner there18 that says letter sent to --19 A. Letter sent to 143 -- I don't know if that's vet.


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20 THE COURT: Looks like vet vend abbreviated. It's21 hard to make it out, but my copies looks like V-E-T and then22 V-E-N-D.23 THE WITNESS: Maybe vendor.

24 THE COURT: Maybe.25 BY MS. WATERS:SOUTHERN DISTRICT REPORTERS (212) 805-0300

2745D5SMIH Chekamian - cross1 Q. I show you what's been marked Defendant's Exhibit F, if you2 would look at the -- I'm sorry, your Honor.3 Would you look on that exhibit and see if your name is4 on that list?

5 THE COURT: Well, it's a multi-page exhibit. If you6 know his name is on it why don't you help us all out?7 MS. WATERS: I am trying to find it, your Honor. My8 yellow tab came off, your Honor.9 THE COURT: Let's go on, move on to something else.10 BY MS. WATERS:11 Q. Would you look at the fifth from the bottom page?12 THE COURT: The what?13 MS. WATERS: The fifth from the bottom page.14 THE COURT: Fifth from the last page?

15 MS. WATERS: Yes, fifth from the last page.16 Q. The second name down, is that your name?17 A. Correct.18 Q. Was that your address at the time?19 A. Still is. Yes.20 Q. And despite the fact that the October 27th letter says that21 it was sent to 143 vendors and your list name --22 THE COURT: It doesn't say that. Somebody wrote it on23 there and we will have to figure out who wrote it and what it24 says. He says he didn't receive it so if you have anything

25 else.SOUTHERN DISTRICT REPORTERS (212) 805-0300

2845D5SMIH Chekamian - cross1 MS. WATERS: No further questions.


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2 THE COURT: Next witness.3 MR. McCALLION: Could I ask one additional question?4 THE COURT: You are going to be out of time in a5 minute. If you want to do that and not have another witnesses,

6 it's up to you.7 MR. McCALLION: We will call Mr. John Elger.8 THE COURT: Thanks, be careful going down.9 THE WITNESS: Sir, may I say something?10 THE COURT: Yes, sir.11 THE WITNESS: Listen, I got a --12 THE COURT: Sit down so she can hear you.13 THE WITNESS: I got a blue license --14 THE COURT: Go ahead. Speak into the microphone.15 THE WITNESS: I got a blue license and I feel it was

16 under unfair advantage I have. I was like turning my --17 MS. WATERS: Excuse me, your Honor. Is this off the18 record?19 THE COURT: No, it is right on the record. If you all20 sit down, please, and let the witness talk?21 MS. WATERS: There is no question before him.22 THE COURT: Yes, but I'm saying he can talk. He asked23 me if he could say something and I said yes, and that's whathe24 is doing.

25 Go ahead.SOUTHERN DISTRICT REPORTERS (212) 805-0300

2945D5SMIH Chekamian - cross1 THE WITNESS: I got a blue license and I feel I got it2 under unfair circumstances.3 I would like to surrender my blue license and I hope4 everybody would get fair about this right now because between5 blue and yellow it's not fair.

6 THE COURT: Okay. Fair enough, fair enough.7 THE WITNESS: I will surrender my blue license to you,8 hopefully you can make sure it goes to the right place.9 THE COURT: Well, that you should discuss with your10 attorney but -- how you want to do that or what you want to do11 it. But we here, we got the point, I think.


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12 THE WITNESS: Thank you, sir.13 THE COURT: You bet.14 THE WITNESS: Have a good day.15 THE COURT: Thanks a lot. Be careful.

16 MR. McCALLION: We will take another witness first and17 see if we have time. Rabah Belkabir.18 THE COURT: I think this is going to be your last19 witness and you will be out of time.20 RABAH BALKEBIR,21 called as a witness by the Plaintiffs,22 having been duly sworn, testified as follows:23 DIRECT EXAMINATION24 BY MR. McCALLION:25 Q. Yes, sir; are you a disabled veteran, retired or discharged


3045D5SMIH Balkebir - direct1 honorably from the United States armed services?2 A. Yes, I do.3 Q. And what is your country of origin, where were you born?4 A. I was born in Nigeria.5 Q. And do you hold a license with New York City Department of6 Consumer Affairs?

7 A. Yes, sir.8 Q. Is that as a disabled veteran?9 A. Yes, sir.10 Q. And is that what is known as a yellow vendor's license?11 A. Yes, sir; I have a yellow one license.12 Q. Drawing your attention to the year 2003, did you have13 occasion to vend within the midtown, Times Square area?14 A. Yes, sir; after the law was expired.15 THE COURT: After the law was expanded.16 THE WITNESS: Expired. I went to I midtown corridor,

17 midtown area, 45th Street and Broadway.18 Q. When did you receive your license?19 A. I received my -- can I look, please?20 THE COURT: Sure.21 THE WITNESS: I believe I received my license one22 month before November 30th -- I'm sorry. Yes, I think it was


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23 like December 30th, 2003.24 THE COURT: 2003?25 THE WITNESS: Yes, sir.SOUTHERN DISTRICT REPORTERS (212) 805-0300

3145D5SMIH Balkebir - direct1 THE COURT: You got a yellow license?2 THE WITNESS: Yes, sir. Yes, your Honor.3 THE COURT: And that enabled you to vend in midtown4 when the old law expired, is that the point?5 THE WITNESS: No. I wasn't doing any vending at that6 time, sir. I started vending, I believe, in August 2003 after7 the law was expired.

8 THE COURT: So with the yellow license you were able9 to vend in midtown when the law was expired?10 THE WITNESS: Yes, your Honor.11 THE COURT: What do you sell?12 THE WITNESS: I sell T-shirts, your Honor.13 BY MR. McCALLION:14 Q. And when you were vending were you wearing identification,15 a hat or anything else, to indicate you were a United States16 veteran?17 A. Yes. When I was vending I was wearing my yellow license

18 and my VA card.19 Q. And during the period of time when you vended in the20 midtown, Times Square area, approximately over the last yearor21 so, have you noticed any congestion or too must disabled22 veterans congregating or vending in that area?23 MS. NEUFELD: Objection.24 THE COURT: Sustained.25 THE WITNESS: No. No, sir.SOUTHERN DISTRICT REPORTERS (212) 805-0300

3245D5SMIH Balkebir - direct1 BY MR. McCALLION:2 Q. Well, let me ask you. How many, based upon your3 observations while you were working there, approximately how


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4 many other disabled veterans with licenses vended in that area,5 if you know?6 THE COURT: In all of midtown?7 MR. McCALLION: Either in the midtown area or if you

8 could tell us.9 THE COURT: How would he know that by observation?10 MR. McCALLION: Okay.11 Q. Was there a particular area where you vended?12 A. Yes. Most of the time I was set up on 45th Street and13 Broadway.14 THE COURT: 45th?15 THE WITNESS: Yes, your Honor -- on Broadway, and16 sometime on 44th and Broadway.17 BY MR. McCALLION:

18 Q. And in the blocks around the area where you would set up19 and vend, approximately how many other disabled veterans with20 licenses were present?21 THE WITNESS: From, like, 48th Street to 42nd Street22 and Broadway and 7th avenue, I think it's like 20 disabled23 vets.24 Q. And what square block area would that cover?25 A. Broadway to 48th Street and Seventh Avenue from 48th StreetSOUTHERN DISTRICT REPORTERS (212) 805-0300

3345D5SMIH Balkebir - direct1 and 42nd Street.2 Q. And, approximately, how many disabled veterans a block3 would set up?4 A. Most of time only one each two blocks or one each block.5 Q. Now, recently, has there come a time when you have been6 restricted or excluded from vending in the Times Square midtown7 area?8 A. Yes, sir.

9 Q. And as a result, what has the consequence been for your10 business?11 A. After the restricted area I can't do any more business.12 I was trying to make a living outside the Times Square13 area but I can't, that's what I -- I have three kids. I have14 two twins and one is 4 years old so that what I can -- I can't


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15 make no living so I have to send my kids away because of that16 and --17 THE COURT: You stopped working?18 THE WITNESS: I did try to work, sir, but I went to

19 Brooklyn but I have to be there at 4:00 in the morning but I20 set up the table, someone will come along with --21 THE COURT: What?22 THE WITNESS: Someone else, your Honor, will come and23 because they have a higher number and I start the business, so24 if somebody has a lower number then, by law, you have toleave.25 THE COURT: You have to move?SOUTHERN DISTRICT REPORTERS (212) 805-0300

3445D5SMIH Balkebir - direct1 THE WITNESS: Yes, your Honor.2 So, like I said, I already sent my two kids away which3 I don't know, I can't go back there because I'm Nigerian and I4 did serve in the United States Army so I'm -- if I go back to5 Nigeria of course they will kill me. Plus, I have to send my6 other -- I am losing everything I have right now and my wife7 and my daughter, they're leaving the end of June.8 THE COURT: They're leaving?

9 THE WITNESS: Yes, your Honor. Because I can't10 support them.11 BY MR. McCALLION:12 Q. As a practical matter, would you be able to turn return to13 Nigeria?14 A. No, sir. I cannot because I did serve in the United States15 Army, which I am proud of and in Nigeria, the Muslim of this16 country support Iraq so I cannot go there anymore.17 Q. And how would you compare your income or business18 opportunities when you were permitted to work in the Times

19 Square area with your income opportunities since beingexcluded20 from the Times Square and midtown area?21 MS. NEUFELD: Objection.22 THE WITNESS: When I was working in the midtown area I23 can't pay my rent and I can't feed my three kids and when I


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24 left I can't even make -- I can't even -- sometime I can't25 buy -- I can't even buy my metro card, which is $17 a week.SOUTHERN DISTRICT REPORTERS (212) 805-0300

3545D5SMIH Balkebir - direct1 MR. McCALLION: No further questions.2 THE COURT: Cross-examination?3 MS. NEUFELD: Yes, your Honor.4 THE COURT: Very quickly, because we want to get to5 any case that you might have.6 CROSS EXAMINATION7 BY MS. NEUFELD:8 Q. Good afternoon, Mr. Balkebir.

9 A. Good afternoon.10 Q. How long have you lived in New York City?11 A. I'm sorry, what was the question again?12 Q. How long have you lived in New York City?13 A. I moved to New York City in 1986 and I went to the, and14 then I come practice here after I get hurt in service, whichis15 2000 I got hurt in -- I left the service in September 2000.16 After I got hurt, of course, they discharged me. I did try to17 stay in the Army but they says no because I am disabled. And

18 of course so I came back to New York City and it was the endof19 September 2000.20 Q. The end of September 2000.21 And the first time you received a general vending22 license from the City of New York was in December 2003, isthat23 right?24 A. Yes. I have to check it, I'm --25 Q. You didn't receive it in 2000 when you first came back, did


3645D5SMIH Balkebir - cross1 you?2 A. No, because I didn't know anything about it.


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3 Q. How did you support your family during that time?4 A. Of course I used to drive a tow truck and I had a couple5 jobs, but my disabled was getting worse so I can't even drive a6 tow truck anymore.

7 I did a few jobs, of course.8 MS. NEUFELD: Thank you.9 THE WITNESS: You're welcome.10 THE COURT: Thanks a lot. Thank you.11 Does the city have any witnesses they would like to12 call?13 MS. NEUFELD: Yes, we do, your Honor.14 We would like to call Lieutenant Bob D'Onofrio.15 ROBERT D'ONOFRIO,16 called as a witness by the Defendants,

17 having been duly sworn, testified as follows:18 THE WITNESS: Lieutenant Robert D'Onofrio commanding19 officer of Manhattan South Peddler Task force and borough of20 Manhattan South.21 DIRECT EXAMINATION22 BY MS. NEUFELD:23 Q. Good afternoon, Lieutenant.24 A. Good afternoon.25 Q. How long have you been the commanding officer of theSOUTHERN DISTRICT REPORTERS (212) 805-0300

3745D5SMIH D'Onofrio - direct1 Manhattan South peddler task force?2 A. Five and a half years.3 Q. What is the peddler task force?4 A. Peddler task force enforces the laws, street vending laws5 which include rules of City of New York, the New York State6 Penal Law and the New York City Administrative Code.7 Q. As the commanding officer of that task force, what are your

8 current duties and responsibilities?9 A. I have approximately 50 personnel under my supervision and10 what I do is I also do administrative duties and plus I do11 patrol duties, and our duties are to enforce the streetvending12 laws like I stated before.


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13 Q. Are you familiar with the term midtown core?14 A. I am.15 Q. What is that area?16 A. That's from 30th Street to 65th Street from Second Avenue

17 to Ninth avenue.18 Q. Do you have an opportunity to patrol the midtown core as19 part of your duties?20 A. Yes, I do.21 Q. And did you have an opportunity to patrol midtown core22 between March of 2003 and March of 2004?23 A. Yes, I did.24 Q. Approximately how often?25 A. At least twice a week.SOUTHERN DISTRICT REPORTERS (212) 805-0300

3845D5SMIH D'Onofrio - direct1 Q. And with respect to the sidewalks in the midtown core area,2 can you tell us the sorts of things you generally observed on3 patrol between March of 2003 and March of 2004?4 A. Especially in the Times Square area, a great deal of5 vendors on Broadway between 44, 45 and 46 and 47. Great deal6 of congestion due to heavy volume of street vendors.7 Q. I am first going to show you what has previously been

8 marked Defendant's Exhibit A through C.9 Have you had a chance to look at these photographs?10 A. Yes, I have.11 Q. Do these photographs fairly and accurately represent the12 types of things you saw while on patrol in the midtown core13 between March of 2003 and March of 2004?14 A. That's correct.15 Q. And have you had occasion to do patrol in the midtown core16 March 6 of 2004?17 A. That is correct, I have.

18 Q. How often?19 A. Like I said, at least minimum twice a week.20 Q. And with respect to the sidewalks in the midtown core after21 March of 2004, what type of things did you observe?22 MR. McCALLION: I'm sorry, what time frame?23 THE COURT: After March of 2004.


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24 THE WITNESS: The sidewalks in the Times Square area25 are very clean and pedestrians can walk with no problem.SOUTHERN DISTRICT REPORTERS (212) 805-0300

3945D5SMIH D'Onofrio - direct1 Q. I would like to show you what was previously marked as2 Plaintiff's Exhibit A?3 A. Okay.4 Q. Do you generally recognize the areas in these pictures?5 A. Yes.6 Q. Do these pictures fairly and accurately represent the way7 the sidewalk normally looks during the day in midtown8 Manhattan?

9 A. That's correct.10 Q. It does?11 A. Yes.12 Q. Can you describe what, if anything, the way in which these13 planters impact on movement across the street?14 THE COURT: Impact on what?15 MS. NEUFELD: Movement through across the street.16 THE COURT: I guess what she is trying to do is this:17 First of all, do you know when they put these planters in? Are18 they new or have they been there?

19 THE WITNESS: Some of them are new and some have been20 there for a while. There are so many streets I can't remember21 them all.22 THE COURT: And what is the point of the planters, if23 you know?24 THE WITNESS: Well, my understanding is so the street25 vendors are, will not put their carts or their tables on theSOUTHERN DISTRICT REPORTERS (212) 805-0300

40

45D5SMIH D'Onofrio - direct1 sidewalk because they have to be at curb side.2 That's basically what it is, and which will allow,3 when you do that it allows pedestrians able to walk through the4 sidewalk because if you have a street vendor with his table5 where that planter might be, what happens is he's at the curb.


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6 He will get enormous customers that will be looking at his7 product. And what happens is they'll be actually sometimes8 into the middle of the sidewalk on some of these smaller9 streets. Some of these small streets are only 12 feet wide and

10 pedestrians have a difficult time getting past the customers11 that are actually looking at the product or when they do,12 sometimes they have to walk on the street.13 THE COURT: Got it.14 THE WITNESS: Got it.15 BY MS. NEUFELD:16 Q. So, do these planters have the same effect as if a vendor17 was standing in the same location?18 A. No.19 Q. Now that the general business law is in effect, is vending

20 allowed on any avenues in the midtown area?21 A. In the core area, no disabled veterans allowed on any22 avenue.23 THE COURT: Since the march --24 A. March 21st law went into effect.25 Q. And what about prior to the law expiring in March of 2003,SOUTHERN DISTRICT REPORTERS (212) 805-0300

4145D5SMIH D'Onofrio - direct

1 were any veterans allowed on the avenues?2 A. They were not allowed on any avenues in the core area.3 Q. At any time?4 A. At any time.5 Q. Except when there was no law in effect?6 A. Excuse me.7 Q. Except when there is no law in effect, is that right?8 A. That's correct.9 Q. Do you have any opinion about what would happen if 300 more10 disabled veterans were allowed to --

11 THE COURT: If what?12 Q. If 300 more disabled veterans were allowed to vend in13 midtown?14 A. Since the law allows one per block face there would be 30015 more blocks that veterans would be assigned to and whathappens


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16 is usually if it is a restricted street, First Amendment,which17 is books, artists, may allow to piggyback on this disabled18 veteran and you would have sidewalk congestion.

19 THE COURT: So, wait a minute. Under the new law20 there will be 300 licenses?21 THE WITNESS: No, sir. Right now there are 60 blue22 disabled veterans.23 THE COURT: Now.24 THE WITNESS: Now.25 In the next three months they are supposed to beSOUTHERN DISTRICT REPORTERS (212) 805-0300

42

45D5SMIH D'Onofrio - direct1 adding an additional 15 and in the next two years a total of2 105 will be allowed to vend in the core area. That's the blue3 core.4 THE COURT: 105 total.5 THE WITNESS: Total.6 THE COURT: So then they add what?7 THE WITNESS: 45 more blue.8 THE COURT: 45 more blue.9 THE WITNESS: 45 more blue disabled veterans.

10 THE COURT: I see. Go ahead.11 BY MS. NEUFELD:12 Q. Lieutenant, I would like to show you the operations order13 that was previously marked as Plaintiff's Exhibit C, Ibelieve.14 Can you just look at this operations order and tell me which15 part, tell me which parts, if any, are still in effect?16 A. Just give me a couple minutes to read it real quick?17 Q. Sure.18 A. I completed it.

19 Q. Can you please explain to the Court which parts of this20 document are still in effect, if there are any?21 A. Item number 6 is still in effect.22 Q. Is that the only portion?23 A. Yes, that's the only one.24 MS. NEUFELD: Thank you.


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25 THE COURT: Cross-examination?SOUTHERN DISTRICT REPORTERS (212) 805-0300

43

45D5SMIH D'Onofrio - direct1 MR. McCALLION: Yes, your Honor.2 THE COURT: Go ahead.3 CROSS EXAMINATION4 BY MR. McCALLION:5 Q. Now, Lieutenant, with regard to Exhibit C, that's still in6 front of you? That was the operation order that we were just7 looking at?8 A. Which one, the operation order or this one?9 Q. No, the operations order. Do you have that in front of

10 you?11 A. Yes, I do.12 Q. Directing your attention to paragraph 3 on first page of13 Exhibit C, now is it your testimony that number 3 is no longer14 in force?15 A. No. That's overlooked. It is still in force.16 THE COURT: It is what?17 THE WITNESS: It is in force, your Honor. I18 apologize.19 Q. During the period of time up until March of 2004,

20 approximately a year from March 2003 to March 2004, bothyellow21 and blue disabled veteran vendors were permitted to vend inthe22 Times Square midtown area, is that correct?23 A. That's correct.24 Q. During that period of time, is it not correct --25 THE COURT: How many were there, do you know, allSOUTHERN DISTRICT REPORTERS (212) 805-0300

4445D5SMIH D'Onofrio - cross1 together; yellow and blue in that area?2 THE WITNESS: Judge, there is no way I could tell you3 because what happens is that you would have -- I am just giving4 you an example.


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5 THE COURT: Right.6 THE WITNESS: You would have a disabled veteran here7 and then you might have 10 First Amendments, and then you might8 have another disabled vet mixed in the crowd, so I really

9 couldn't tell you how many would be.10 THE COURT: Okay.11 Q. Now lieutenant, there are in fact approximately only 37112 disabled veterans registered with the New York City Department13 of Consumer Affairs?14 THE COURT: Is that blue and yellow?15 MR. McCALLION: Either yellow or blue.16 THE COURT: You say there is 371?17 THE WITNESS: I think 374.18 THE COURT: He said 374.

19 THE WITNESS: I think consumer affairs said 374.20 BY MR. McCALLION:21 Q. And there are approximately 827 block faces in the midtown22 Times Square area, are there not?23 A. That I can't answer, to be honest with you.24 Q. Well, when you said that there was congestion, is it your25 testimony that there was congestion in the midtown area fromSOUTHERN DISTRICT REPORTERS (212) 805-0300

45

45D5SMIH D'Onofrio - cross1 approximately March 2003 to March 2004 because there were so2 many disabled veterans with licenses working in that area?3 A. I can't say that there were that many disabled veterans but4 what happened was since the law expired the disabled veteran5 was allowed on the avenues. So, what happened is prior to that6 they weren't allowed on the avenue. Now, when they were7 allowed on the avenue, First Amendment people were allowed on8 those avenues because of the disabled veteran.9 So it winds up getting very congested because of the

10 numerous amount of vendors.11 Q. Now, the city had a policy, did it not, and in fact we have12 reflected in the documents introduced here, to permit First13 Amendment vendors to piggyback, I believe that was your word,14 on a yellow or a blue vendor, isn't that right?15 A. That is correct.


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16 Q. So, you could have one veteran, yellow or blue vendor on a17 block and you could have, virtually, an unlimited number of18 First Amendment vendors who would then follow after that19 vendor, isn't that right?

20 A. That is correct. But it also depends on the size of the21 street and its location. Some sidewalks are too small for a22 vendor to vend and also if the vendor was within 10 feet of an23 entrance of a building they were not allowed.24 So it might have limited some of them but most of the25 time it didn't.SOUTHERN DISTRICT REPORTERS (212) 805-0300

4645D5SMIH D'Onofrio - cross

1 Q. But it was a city practice or policy to permit these First2 Amendment vendors to piggyback or trail along behind the3 veteran vendors, isn't that right?4 A. Well that's -- they were allowed to do that, exactly.5 Q. Was this a city regulation or rule?6 A. That was just the rule that, I guess, the city allowed.7 Q. Now, during the period of time when blue and yellow vendors8 in March of 2003 -- well, let me ask you this.9 If the city didn't have a rule to let a virtually10 limitless number of First Amendment vendors to tag along

behind11 the veteran vendors in the midtown area we would only have, at12 most, 371 disabled veterans in the midtown area, which hasover13 800 block faces, isn't that right?14 THE COURT: If you precluded all the First Amendment15 vendors, isn't that what you are inquiring about, right?16 MR. McCALLION: No.17 THE COURT: You said if there was no rule of18 piggybacking and there was only 374 blue and yellow vendors,

19 then you would have 374 blue and yellow vendors, right?20 MR. McCALLION: Correct.21 THE COURT: Pretty self-evident, right?22 MR. McCALLION: Correct.23 THE COURT: So the answer has to be yes, right?24 THE WITNESS: Yes.


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25 The only problem with that, Judge is the majority ofSOUTHERN DISTRICT REPORTERS (212) 805-0300

47

45D5SMIH D'Onofrio - cross1 persons, vendors want to be right in the Times Square area2 because that is where the money is at.3 THE COURT: Right. I see.4 BY MR. McCALLION:5 Q. Well, why did the city, to your knowledge, in policy or6 practice, tie the availability of vending in the midtown area7 to the presence of a yellow or blue veteran vendor?8 A. Well, sir, if you look at the constitution, what's more of9 a priority, your First Amendment or disabled veteran? So you

10 cannot tell somebody who is selling First Amendment material11 they cannot vend and you allow a disabled veteran to vend, so12 that's why they allow it.13 Q. Wasn't it your testimony that a First Amendment vendor in14 this restricted area in the midtown area can only go oncertain15 blocks if there was a veteran vendor, isn't that right?16 A. Only if the -- well, let's get it straight.17 When you say during the period when the law elapsed or18 during the period when the law was in effect. You have to give

19 me the period you are talking about, sir.20 Q. March 2003 to March 2004?21 A. During the lapsed period. Okay.22 Q. Well, just to clarify. Only if a veteran vendor was23 present on a block were First Amendment vendors permitted or,24 conversely, if a disabled veteran with a license wasn't on the25 block First Amendment vendors could not go on that block,isn'tSOUTHERN DISTRICT REPORTERS (212) 805-0300

4845D5SMIH D'Onofrio - cross1 that right?2 A. Well, if it's a restricted street; yes.3 Q. And now yellow veteran vendors aren't allowed at all in the4 midtown Times Square area, isn't that right?


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5 A. That's correct.6 Q. Now, during the --7 THE COURT: How many blue are there and how many8 yellow?

9 MR. McCALLION: 60 blue, potentially.10 THE COURT: 60 blue, and the balance of how many11 yellow?12 MR. McCALLION: Theoretically it could be 374, minus13 60.14 THE COURT: 60, okay.15 Q. But in fact, Lieutenant, there are only approximately 51 or16 52 active blue licenses, isn't that right?17 A. I didn't look at the last list but I understand some people18 did not renew their licenses.

19 THE COURT: Somewhere between 50 and 60?20 THE WITNESS: Yes.21 THE COURT: How many active yellow are there?22 BY MR. McCALLION:23 Q. Do you know, sir?24 A. No, I don't.25 THE COURT: Do you know? Does anybody know.SOUTHERN DISTRICT REPORTERS (212) 805-0300

49

45D5SMIH D'Onofrio - cross1 MS. NEUFELD: We do have a witness.2 (Counsel conferring)3 MS. NEUFELD: How many active yellow? 314. About 3144 she said.5 BY MR. McCALLION:6 Q. There are literally thousands of First Amendment vendors in7 the City of New York, isn't that right?8 A. That's correct.9 Q. And literally thousands of them vend in the Times Square

10 midtown area, isn't that right?11 A. Where they're legally allowed, yes.12 Q. And there are literally thousands of hot dog and food13 vendors that are licensed by the city to vend in the midtown14 and Times Square area, isn't that right?15 A. Where they're legally allowed; yes, sir.


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16 Q. So, isn't it correct to say that the disabled veterans who17 hold licenses, yellow or blue, comprise a small fraction or18 less than five percent of the total number of licensed vendors19 licensed by the Department of Consumer Affairs, isn't that

20 right?21 A. That's correct.22 Q. And when blue and yellow veterans were permitted to vend in23 the Times Square midtown area, say March 2003-2004, you and24 others under your command and the New York City Police25 Department had ample authority, as reflected in Plaintiff'sSOUTHERN DISTRICT REPORTERS (212) 805-0300


1 Exhibit C, to restrict or move yellow and blue disabled veteran2 license holders who might be blocking access to buildings or3 impeding pedestrians traffic or any other situation that might4 impact on public safety, isn't that right?5 A. That is correct.6 Q. So, you could, you and others in the New York City Police7 Department, could move or even tell yellow card veterans to8 move out of a given area if congestion or public safety9 appeared to be a problem in a particular block, isn't that10 right?

11 A. That's correct.12 Q. And, in fact, you exercised that right, didn't you?13 A. Some of it; yes, we did.14 Q. Isn't it true that there are literally thousands of illegal15 vendors selling knockoff watches and other merchandise in the16 Times Square and midtown area?17 A. I can't tell you that there is thousands but I can tell you18 that I made, my unit made 3,506 arrests last year just for19 illegal vending which included unlicensed general vending and20 trademark counterfeiting, 50 percent were trademark

21 counterfeiting, the other 50 percent were unlicensed general22 vending.23 Q. And you have, to put it mildly, a serious problem in the24 midtown area with repeat offenders who are issued tickets or25 summons one day are back on the same street and location theSOUTHERN DISTRICT REPORTERS (212) 805-0300


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5145D5SMIH D'Onofrio - cross1 next day, isn't that right?

2 A. I don't know if they're back on the street the next day.3 First of all, I don't issue summonses to people who4 are unlicensed or sell counterfeiting. According to the New5 York State Penal Code it is an A misdemeanor, they have to be6 arrested.7 And an unlicensed general vendor, usually we give8 them, it is unclassified misdemeanor, we would give them -- we9 will arrest them and if they're unlicensed and we will try to10 give them what they call desk appearance tickets to let them11 out.

12 Q. There are many vendors in the midtown area who don't have a13 white license, they're not registered with the department of14 consumer affairs who actually do vend their goods and play a15 cat and mouse game with the police department, is that right?16 THE COURT: He said that.17 MR. McCALLION: No further questions.18 THE COURT: Anybody else? Any other witnesses?19 MS. NEUFELD: No, your Honor.20 THE COURT: Thanks.21 MS. NEUFELD: Defendants would like to spend five

22 minutes overall for argument.23 THE COURT: Okay. Well, its his motion, he can have24 fives minutes first and then you can have five minutes.25 There was no way that the two of you could come toSOUTHERN DISTRICT REPORTERS (212) 805-0300

5245D5SMIH D'Onofrio - cross1 some accommodation here without litigation?2 MS. NEUFELD: No. Your Honor, there is too many

3 problems with that. First and foremost, it is a New York State4 law and the city has no authority to disregard its terms. That5 would have to be done by the state law.6 The other thing is that there was discussion of giving7 out blue licenses to just the named plaintiffs in this case, or8 a certain class of 15 or 20, however that's completely unfair


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9 to the other 300 that exist, so.10 THE COURT: I understand.11 MR. McCALLION: We have no proposal or demand in that12 respect, your Honor. So, if the city suggests that we would

13 settle the case by --14 THE COURT: No, no. I'm not looking for an argument,15 I am looking to see if there is a way to resolve the problem.16 If there is, there is. If there is not, there is not. I'm17 just trying to be helpful.18 MR. McCALLION: Your Honor, it would appear that the19 denial of vending opportunities and licenses to a very small,20 minuscule number of -- relatively minuscule number, 371vendors21 who are restricted from the core, prime tourist areas where

22 vendors have traditionally made their --23 THE COURT: Not all vendors are restricted from that24 area as I understood the testimony.25 MR. McCALLION: That's correct, there is about 52SOUTHERN DISTRICT REPORTERS (212) 805-0300

5345D5SMIH D'Onofrio - cross1 outstanding.2 THE COURT: 52 to 60 some odd are eligible.

3 MR. McCALLION: Yes.4 THE COURT: So you are wrong about denying 374, you5 mean 374 minus the 50 to 60, right?6 MR. McCALLION: I did, your Honor. And I stand7 corrected.8 THE COURT: Okay.9 MR. McCALLION: It is our view that the deprivation10 and the arbitrary distinction between qualified disabled11 veterans who are a small and miniscule percentage of the12 overall vendors in the city and who have enjoyed, since 1896,

13 special status in the city since the city passed -- since the14 city allowed returning civil war veterans to vend and to honor15 disabled veterans, that the arbitrary distinctions between16 yellow and blue vendors, based on nothing more than the fact17 that some disabled veterans through word of mouth and18 grapevine, through no publicly published newspapers or


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mailings19 to veterans on the list, is arbitrarily capricious and indeed20 insidious in that it tends to pit, as Mr. Chekamian testified21 to, arbitrarily, certain qualified veterans who have blue

22 licenses against their brothers and sisters who have yellow23 ones.24 There is no rational basis for the restriction of25 anything less than, of all available and qualified veterans,SOUTHERN DISTRICT REPORTERS (212) 805-0300

5445D5SMIH D'Onofrio - cross1 the 371 or 374 to be available in the midtown area.2 If there is congestion it is not due to veterans who

3 hold blue and yellow licenses, their numbers are small, and the4 mere fact that the city may have created a tag along policy5 which is attempting to reverse by inviting an unlimited number6 of First Amendment vendors to follow the veterans to therefore7 then claim that there is congestion and to use that as an8 excuse and an artifice and a pretext to then not ban the First9 Amendment vendors but to ban the qualified veterans we believe10 is irrational, arbitrary and capricious.11 Moreover, in addition to the arguments set forth --12 THE COURT: Can you legally ban a First Amendment

13 vendor from a site where there is a licensed vendor?14 MR. McCALLION: First Amendment vendor, as is15 indicated, has considerable rights under the First Amendment.16 There are rules and regulations.17 THE COURT: My question is a simpler one. Is it18 lawful, permissible to preclude the First Amendment vendorfrom19 a site where there is a licensed vendor?20 MR. McCALLION: I believe the city would be in a21 better position to answer that.

22 THE COURT: I am asking you. If you don't know you23 don't know. It is not a trick question. None of these24 questions are trick questions. I want to know what the facts25 are, if you know them.SOUTHERN DISTRICT REPORTERS (212) 805-0300


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5545D5SMIH D'Onofrio - cross1 MR. McCALLION: From a constitutional basis, First2 Amendment vendors doesn't have a license, they don't need a

3 license, they can just come or go.4 THE COURT: I ask it again if you know the answer. If5 you don't know the answer, the best thing is to say you don't6 know the answer. A lawyer will always tell you that.7 Do you know the answer? I don't myself know and I am8 asking if you do.9 MR. McCALLION: I do not know.10 THE COURT: That's fair.11 MR. McCALLION: But what I believe I do know is, and12 only having recently learned of it, is that not only is the

13 restriction of the 370-plus veterans arbitrary and capricious14 and no rational basis in the midtown area, but the piggyback,15 as the lieutenant indicated and city policy which I am notsure16 it is written, but it appears to have appeared on a letter17 which is Exhibit B which, like a pied piper, would only permit18 First Amendment vendors to follow the others, is even more19 irrational because the First Amendment vendors have a right to20 go virtually unrestricted absent public safety considerations.21 Then, linking that to a small number of qualified

22 veterans to follow along with them makes no sense. Each one of23 these blocks has, as you know, dozens, if not more of food24 vendors, unlicensed vendors, of other kinds of vendors, so we25 are talking about a minuscule percentage.SOUTHERN DISTRICT REPORTERS (212) 805-0300

5645D5SMIH D'Onofrio - cross1 THE COURT: I got it.2 Take another minute so we can then hear from the city.

3 MR. McCALLION: Yes.4 We would like to supplement our papers based on the5 hearing testimony by arguing the following, which is that in6 addition to equal protection and due process considerations, we7 believe that the First Amendment is substantially impacted in8 this case as well in that the veterans, as disabled veterans in


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9 identifying themselves to the public, are holding themselves10 out, and through the process of expressing themselves and11 trying to make a living on the street, are protected by the12 First Amendment as well and freedom of expression in the same

13 way that a so-called First Amendment vendor who is sellingsome14 artwork.15 And be it not for us to decide what is art or not,16 good art or bad art, that is protected by the First Amendment17 in such a way that the veterans who interact with the public,18 who are sought out by tourists and the public as veterans who19 are honored by the purchase of their merchandise as opposed to20 the merchandise perhaps in the store or elsewhere is a fine21 tradition and that is, indeed, especially in these troubled

22 times relating to veterans, something of a shame for the city23 to ban veterans from an area where the world comes to NewYork,24 goes to Times Square and sees hot dog vendors and other kinds25 of vendors but can no longer see more than 52 veterans whoSOUTHERN DISTRICT REPORTERS (212) 805-0300

5745D5SMIH D'Onofrio - cross1 place their flags prominently, wear their medals, and are

2 seeking to make an honorable living and avoid helplessness and3 homelessness because they cannot gain other gainful employment4 due to their disability.5 Thank you, your Honor.6 THE COURT: Counsel.7 MS. NEUFELD: Your Honor, as I am sure you can8 appreciate after all of this, vending in New York City is quite9 complicated.10 It is important to remember that all vendors who sell11 anything other than food are considered general vendors.

12 Within the subset of general vendors, and I believe ourrecord,13 the declaration from Alba Pico that we submitted shows there14 are over 2,000 general vendors within the city, 36 within that15 subset are disabled veterans.16 Now, in general, there are no general vendors at all


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17 within the midtown core.18 First Amendment vendors are also considered general19 vendors and First Amendment vendors are permitted to vend in20 the city without a general vendor's license, however they must

21 abide by all the other time, place and manner restrictionsthat22 are applicable to other general vendors because they are also23 selling merchandise, even though that merchandise is protected24 by the First Amendment.25 THE COURT: So, do I understand it that there areSOUTHERN DISTRICT REPORTERS (212) 805-0300


1 2,000 vendors in New York City that includes the First2 Amendment vendors?3 MS. NEUFELD: No, it does not. We don't know how many4 First Amendments there are because we do not license them.5 THE COURT: I see.6 MS. NEUFELD: So, the 2,000-some-odd includes both7 disabled and --8 THE COURT: Right. You have no idea, the city has no9 idea how many First Amendment vendors there are.10 MS. NEUFELD: Right.

11 And it is the city's position that there is no city12 rule or law that tells us that we have to allow FirstAmendment13 vendors to proceed to be on any block where another vendor is.14 However, Supreme Court case law tells us that.15 If we are going to allow another individual that sells16 this arguably general merchandise just like a First Amendment17 vendor, we have absolutely no basis to say that the First18 Amendment vendor who has a superior right can't be there.19 Even if there were no vendors at all in midtown,

20 everyone, we all live in New York and we know that midtown21 Manhattan is congested and it is also important to remember22 that this is a state law, not a city law. The city didn't23 choose to have this law.24 The other thing is that back in, before 1995 there was25 no separate law with respect to vending by disabled veterans


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inSOUTHERN DISTRICT REPORTERS (212) 805-0300

59

45D5SMIH D'Onofrio - cross1 New York City. At that time the vending law with respect to2 disabled veterans applied throughout New York State and said3 that local governments had absolutely no control or could not4 in any way enact a local rule that would affect vending by a5 disabled veteran recognizing that New York City had congestion6 issues not present anywhere else in the state. The state7 decided to enact Section 35A which, in effect, made Section 358 inapplicable in the New York City.9 So, the state legislature has recognized that there

10 are special issues that need to be addressed in a city and the11 limit on a number of vendors in midtown directly correspondsto12 their goal of reducing congestion in that area.13 And, as your Honor knows, the legislature doesn't have14 to create a law which is perfect or which addresses the entire15 concern as long as it is rationally related to helping that16 concern in some way.17 There are also aesthetic issues that the legislature18 wanted to deal with and your Honor can see for yourself

through19 the pictures that we submitted that it is a big problem when20 you have wall to wall vending in midtown Manhattan as pertains21 to --22 THE COURT: I get it, I get it.23 MS. NEUFELD: And to address, briefly, the food24 vending issue as we discussed in our papers.25 Even though food vending is regulated by the city,SOUTHERN DISTRICT REPORTERS (212) 805-0300

6045D5SMIH D'Onofrio - cross1 even if it was regulated by the state, it is a completely2 rational basis for the city to, for the legislating body to3 distinguish between general vending and food vending.4 There is no inherent property right at all to vend in,


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5 to be a street vendor, and the city has and the legislature has6 competing concerns with respect to congestion and the rights of7 people who want to sell goods in the city. It was rational --8 it is rational to decide that food vendors who sell a product

9 that is not otherwise readily available in certain areas of the10 city, that the public has a right to have access to thosetypes11 of vendors and we have addressed that in our papers.12 Just to briefly summarize. The plaintiffs have not13 established at all that they are entitled to a preliminary14 injunction. As you know, they need to have proven that they15 will suffer irreparable harm. They have not done that at all.16 Their allegations of financial harm belie common sense when17 there are over 2,000 other general licensed vendors who are

18 presumably making their living vending in other areas of the19 city that are prohibited to the yellow licensees.20 Moreover, should the plaintiffs ultimately prove21 successful --22 THE COURT: Wait, wait. You are going too fast, I'm23 sorry.24 MS. NEUFELD: I am trying to get it in in my time.25 THE COURT: I know, but better to get it in that weSOUTHERN DISTRICT REPORTERS (212) 805-0300

6145D5SMIH D'Onofrio - cross1 can understand it.2 MS. NEUFELD: Moreover, should the plaintiffs3 ultimately prove successful on their claims, a point which we4 dispute, they would certainly be able to be made whole by5 monetary damages, they don't need an injunction at this point.6 And as we have just discussed, there is clearly a7 rational basis for limiting the number of disabled veterans who8 are allowed in the midtown area.

9 Finally, to address the last point which we have just10 heard today that disabled veterans are somehow expressingtheir11 First Amendment right by vending on the street, the city would12 need more time to look into that. However, it seems to me that13 that's not the type of expression that the First Amendment


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14 contemplates, allowing someone to sell general merchandise,15 socks, t-shirts, whatever, and say that they're expressing16 themselves just because they happen to be a disabled veteran.17 THE COURT: Okay, thanks a lot.

18 This has been very helpful, both the oral testimony of19 the witnesses and the arguments of counsel.20 One thing needs to be made clear so that everybody21 understands, even though I think it wasn't always clear under22 the arguments today. I am not being asked to decide this case23 on the merits today because this is a very preliminary stage.24 The only issue, really before me, is whether there should be a25 preliminary injunction. And whether there is one or whetherSOUTHERN DISTRICT REPORTERS (212) 805-0300

6245D5SMIH D'Onofrio - cross1 there isn't one, the case continues and you all get a chance to2 argue the merits at a later time.3 So, keep that in mind. We are not here today to4 resolve either the due process claim definitively or the equal5 protection claim or the First Amendment claim if there is one,6 but only to decide in the first instance whether there is7 irreparable harm and only, if we get past that issue, whether8 there is a likelihood of succeeding on the merits.

9 So, anyway, I thank you all and I will have a decision10 as soon as I can.11 Thanks a lot.12 MR. McCALLION: Your Honor, may I make an application13 to amend the complaint to conform to the proof on the First14 Amendment issue?15 THE COURT: If you want to amend your complaint talk16 to counsel, see if she has an objection. If she does have an17 objection, then you want to submit a letter application.18 MR. McCALLION: And there is one additional case we

19 wanted to cite, may we do that by letter or cite it on the20 record?21 THE COURT: The case cite you should give us now.22 MR. McCALLION: Bery v. City of New York, 97 F.3d 689,23 Second Circuit, 1996.24 Thank you, your Honor.


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25 THE COURT: Great. Thanks a lot. Nice to see youSOUTHERN DISTRICT REPORTERS (212) 805-0300

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45D5SMIH D'Onofrio - cross1 all.2 o0o3456789

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202122232425SOUTHERN DISTRICT REPORTERS (212) 805-0300

641 INDEX OF EXAMINATION

2 Examination of: Page3 ROBERT LEDERMAN4 Direct By Mr. Goodman: . . . . 34 Cross By Ms. Neufeld: . . . . 145 PHILIP CHEKAMIAN6 Direct By Mr. . . . . . . . . 19


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6 McCallion:7 Cross By Ms. Waters: . . . . . 268 RABAH BALKEBIR9 Direct By Mr. McCallion: . . . 29

9 Cross By Ms. Neufeld: . . . . 3510 ROBERT D'ONOFRIO11 Direct By Ms. Neufeld: . . . . 3611 Cross By Mr. McCallion: . . . 4312 DEFENDANT EXHIBITS13 Exhibit No. Received14 A, B and C . . . . . . . . . . . . . . . 19151617

1819202122232425SOUTHERN DISTRICT REPORTERS

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From: "Robert Lederman"

Date: Fri May 14, 2004 11:31 am

Subject: Hearing in Fed Court on vending

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Planters vs street artists and vendors in Federal Courtby Robert Lederman

Yesterday (5/13/04) I testified in Federal Court on the issue ofplanters,street furniture, veteran vendors and vending generally. This waspart ofthe disabled veteran vendors lawsuit. The judge heard oralargumentsconcerning the vets getting a temporary injunction suspendingenforcement ofthe law while the case is being decided.

The court accepted into evidence various documents I hadcollected on

vending including numerous photos I recently took showingthousands ofplanters lining the streets. These included planters in Midtownand on WestBroadway. I got the opportunity to testify on the record aboutthe StreetFurniture Initiative, planters used to displace vendors and theCity'sunreasonable policy of NYPD enforcement linking street artistsand disabled

veterans.

After I testified the City called Lt. D'Onofrio to testify. He'stheCommanding Officer of the NYPD Peddler Task Force.


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You may be familiar with the legal saying about lawyersquestioning awitness, "never ask a question you don't already know the answerto." The

City lawyer, who was clearly caught by surprise about the planterphotos,showed him all the photos I had taken and asked Lt. D'Onofriowhether theyaccurately showed the Midtown area and what the purpose of theplanters was.I imagine she expected him to say the photos were faked or thatplanterswere about beautifying NYC.

Instead, he shocked everyone in the courtroom by acknowledgingthat thephotos were accurate and then describing in detail that theentire purposeof the thousands of planters lining the streets of Midtown was todisplacevendors.

Coming from the head of the NYPD Peddler Task Force this is astunning

admission made under oath which we will be able to use insubsequentlawsuits and legal actions. Lt. D'Onofrio is who the City nowuses in courtas their "expert witness" on vending, so they can't very wellclaim hedidn't know what he was talking about (although based on pastexperiencewith the City's lawyers, I won't be surprised if today he's beingforced to

write an affidavit contradicting his own sworn testimony).Whatever pastconflicts vendors have had with him, we should be grateful thatthis officertestified honestly and by doing so actually helped all NYCvendors.


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On their website, the Grand Central Partnership BID brags tohavinginstalled 750 planters along the curb in that one area alone, the

City'smost congested. That's far more than all the vendors in Midtown.

The photos, which I took at 6 AM before pedestrians couldobstruct the view,showed entire blocks filled from corner to corner with planters,includingsome in the actual crosswalk! This is yet another example of thevalue ofusing photographic evidence rather than depending on unverifiable

anecdotes.

Do you have your camera and tape recorder yet? If not, you aregoing to wishyou had when NYPD enforcement reaches your stand to enforce non-existentlaws and you are on your way to ECB or Criminal Court withnothing in theway of actual evidence to defend yourself with.

The legal point of the photos was that thousands of plantersactually causefar more congestion in Midtown than a few hundred vendors do,therefore, theCity's claim to be against vendors because we congest the streetsisobviously a false one. If the congestion claim can be shown to befalse,laws against vending that were supposedly designed to preventcongestion may

be able to be overturned. There's a lot of potential there,includingrestricted streets, 20 feet from a door etc.

I know most street artists are not paying much, if any, attentionto the


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Street Furniture Initiative, to the disabled vet vendor law thatwas passedin February or to the veterans lawsuit because they don't thinkthese things

have anything to do with them. In fact, they have everything todo withstreet artists.

Most of the testimony yesterday centered on the issue of streetartists. TheCity tried to exclude me as a witness but failed. The Citylawyers, thepolice and the judge all discussed in great detail how thedisabled vet law

was actually an attempt to get rid of street artists - exactly asI've beenwriting for two years. Whatever the judge decides concerningissuing theinjunction, he made it clear that either way the injunction wouldnot decidethe case, and he seemed quite interested in and surprised aboutthetestimony.

When the hearing began, the judge had said he was alreadyprepared to makehis decision based on only the legal papers originally submitted,whichfocused almost completely on the unfair distribution of the Blueand Yellowvet licenses. Now at least he understands far more about thevending issue.

The vets testified extremely well on their behalf. All vendors

should beproud of these vets standing up for their rights. Any victory byany vendorsagainst the City is a victory for us all.

I was also able to testify and submit evidence showing that the


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City alreadyhad many laws on the books which they could use to enforceagainst veteransand street artists, without passing the veteran vendors law

banning them andus from Midtown. The City's inept questioning of Lt. D'Onofriogot him toadmit that this was also true and that he routinely enforced lawsagainstdisabled veterans and street artists in Midtown during the yearthe vet lawhad expired. You'll recall that all the negative news articlesandeditorials on the urgent need for passing the law claimed the

City had, "noway to enforce any laws against vendors."

How absurd is the city's position?

The City claimed it was reasonable to ban the total number (lessthan 300disabled veterans) from all of Midtown while allowing thousandsof foodvendors to sell there, because food vendors provide a service.

They shouldhave been ashamed to make such a statement during an active warwithsoldiers being killed and wounded on a daily basis. It goes toshow howfalse the City's justifications for being against vendors are.While foodvendors do provide a service, the fact is, food vendors havespecial rightsbecause some City Councilmembers had owners of food vending

corporations ontheir staffs and were taking financial contributions from foodvendingcorporations when those laws were written.

During cross examination the City tried to get me to admit that


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three photosthe BIDs took allegedly showing "congestion" proved that vendorscongestedthe streets. The photos backfired on them when I pointed out to

the judgethat they were taken with a powerful telephoto lens thatcompresses images,which created the illusion of a crowd when in fact there wereonly twentypedestrians in the entire photo. The City made no effort torefute what Isaid about the photos.

All in all, it was a very interesting and educational day in

court. Theconsensus of those who attended is that the judge will probablydeny theinjunction but the that the vets will ultimately win the lawsuit,exactlythe pattern followed in the street artist lawsuits.

Vet Planter Hearing

Documents

Transcript of Vet Planter Hearing