Mother’s Day Cards Are Not Exempt From General Vendor’s License Requirement

Here’s a little Mother’s Day-themed law for you.

In Pierre v. City of New York, the Southern District of New York recommended the dismissal of various claims asserted by plaintiff against the City of New York, including for false arrest, excessive force, deprivation of property, violation of First Amendment rights, under federal law (through 42 USC 1983) and state law.

In one of the incidents giving rise to plaintiff’s claims, he was arrested for selling Mother’s Day cards. Plaintiff claimed that the cards were “covered by the First Amendment” and therefore he could “sell them in any public area.”

Unfortunately for plaintiff, selling Mother’s Day cards requires a license, which he apparently didn’t have. Section 20-453 of the NYC Administrative Code provides:

It shall be unlawful for any individual to act as a general vendor without having first obtained a license in accordance with the provisions of this subchapter, except that it shall be lawful for a general vendor who hawks, peddles, sells or offers to sell, at retail, only newspapers, periodicals, books, pamphlets or other similar written matter, but no other items required to be licensed by any other provision of this code, to vend such without obtaining a license therefor. (Emphasis added.)

The court disagreed with plaintiff that selling Mother’s Day cards fell within the exemption to § 20–453’s licensing requirement:

Pierre suggests in his opposition papers that N.Y.C. Admin. Code § 20–453 “clearly states a license isn’t required for vendors who sell newspapers, periodicals, books, pamphlets or other written matter” and that his Valentine’s Day and Mother’s Day cards “fall under this category.” Pierre is mistaken, however, because this exemption in the Code does not exempt any “written matter” but only written matter that is “similar” to the other items listed in the provision: that is, similar to “newspapers, periodicals, books, [and] pamphlets.” N.Y.C. Admin. Code § 20–453. As one court noted in ruling that calendars and datebooks were not exempted from section 20–453, “[t]he common characteristic of ‘newspapers’, ‘periodicals’, ‘books’ and ‘pamphlets’, which are set forth in the statute as exempt, is the ability to communicate in a manner that contributes to or generates the exchange of ideas that trigger constitutional protection and are fundamental to a democratic society.” People v. Shapiro, 139 Misc.2d 344, 346–47 (N.Y.Crim.Ct.1988). Accordingly, “[p]apers that are clothed between two covers with a spine to bind them together, and happen to have some words included should not be categorized in the same vein as a political pamphlet, a newspaper, or even a poem, which is sold in the free-flowing exchange of ideas in this society.” Id. at 348. Similarly, People v. Andujar, 31 Misc.3d 757 (N.Y.Crim.Ct .2011), reasoned that “the term ‘other similar written matter’ must mean similar insofar as it is a vehicle for speech and expression akin to a newspaper, periodical, book or pamphlet.” Id.at 763. Thus, Pierre’s claim for false arrest based upon the argument that greeting cards are exempt from the general vendor’s license requirement must fail because the complaints do not describe the greeting cards in such a way as to suggest that they come within the “other similar written matter” exemption of N.Y.C. Admin. Code § 20–453.

Oh, and Happy Mother’s Day.

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