Beruflich Dokumente
Kultur Dokumente
Section 1-03(c)(1) of 56 RCNY provides that “[n]o person shall fail, neglect or
refuse to comply with lawful direction or command of any . . . Parks Enforcement Patrol
Officer or other Department employee . . . .”
Section 1-05(b) prohibits any person from selling or offering for sale anything
whatsoever, except under and within the terms of a permit.
Petitioner, the Department of Parks and Recreation, did not answer the appeal.
On this record, the Board is persuaded that the items sold by Respondent are art
within the scope of the permanent injunction issued in connection with the case of Bery v.
City of New York. 1 In Bery, the United States Court of Appeals for the Second Circuit
held that vendors of traditional forms of art, i.e. paintings, photographs, prints, and
1
97 F.3d 689 (2d Cir. 1996), cert. den., 520 U.S. 1251, 117 S. Ct. 2408, 138 L. Ed.2d 174 (1997).
sculpture always communicate some idea or concept and are therefore presumptively
entitled to full First Amendment protection. The District Court for the Southern District
of New York held in Lederman v. Giuliani, 2 that in view of the Bery decision, the permit
requirement of 56 RCNY §1-05(b) cannot be enforced against art vendors. Based on
Respondent’s credible testimony and photographic evidence, the Board concludes that
the hand-carved, hand-painted matryoshkas fall within the protected category of
“sculptures.” Consequently, Respondent was not required to obtain a permit from
Petitioner in order to sell his merchandise in a park.
The Board also finds that Respondent did not fail to comply with a lawful
direction or command of a Parks Department officer, as required by Section 1-03(c)(1) 56
RCNY. From the statements on the NOVs, the IO clearly ordered Respondent to pack up
his merchandise and leave the park because she believed he was vending without a
permit. However, as Respondent was not required to obtain a permit in order to sell the
matryoshkas, there was no lawful basis for the IO’s command. Consequently, on this
record, Petitioner has not established that Respondent refused to comply with a lawful
direction.
Accordingly, the Board reverses the ALJ’s recommended decisions and order and
dismisses the NOVs.
2
2001 U.S. Dist. LEXIS 11567, 2001 WL 902951 (S.D.N.Y. Aug. 7, 2001), as affirmed in Lederman v.
Rosado, 70 Fed. Appx. 39, 2003 U.S. App. LEXIS 14395 (2d Cir. 2003).