When I went to work for Grand Central Partnership among my first assignments from Dan Biederman was to figure out how to deal with sidewalk issues: vending, newsracks, newsstands, payphones and making public toilets more available. In dense urban centers sidewalks, while public space, are highly contested territory, and the regulation of activity on them in New York City is arcane and labyrinthine. Not only pedestrians care about sidewalks. Adjacent property owners not only have responsibility for cleaning and maintaining their sidewalks, but they care about what happens in front of their multi-million dollar investments; particularly with its impact on ground floor retail. In midtown Manhattan, many buildings have vaults under the sidewalks that expand their basement space – and so are concerned about how much weight is put on them and whether anyone is punching holes in them.

A range of people have traditionally engaged in commercial activity on the New York City sidewalks – and these uses are heavily, if often ineffectually, regulated. There are separate governing schemes for four kinds of sidewalk venders: general merchandise, food, veterans and first amendment vendors. The Department of Parks and Recreation has its own scheme for concessioning venders within city parks as well as on adjacent sidewalks, and even sidewalks across the street from a park! The City permits individuals to erect newsstands at any sidewalk location that meets certain siting criteria – with no discretion by the City with respect to the location. If the proposed structure fits – the applicant is entitled to a permit. The Department of Transportation manages the enforcement of some (but not all) of these rules and is ultimately responsible for the physical condition of the sidewalks and with seeing to it that sidewalk uses don’t interfere with transportation (bus stops) or public safety (fire hydrants).

The food vendors outside the Met Museum

Sidewalks are also the classic “public forum,” and under the First Amendment of the United States Constitution, speech activity on sidewalks is provided with a high degree of deference. Regulation of First Amendment activity on sidewalks, which includes not only individuals handing out flyers or making speeches, but also newsstands and newsracks, is subject to “strict scrutiny” by the federal courts. As a general rule, First Amendment activity on sidewalks may not be more highly regulated than any other sidewalk activity. In New York City a wide range of groups and individuals, particularly including the newspapers, have been highly protective of their sidewalk rights.

Granville Island, Vancouver, B.C.

Vending presents a particularly interesting set of issues – given that many of us in the business of placemaking have changed our views about commercial activity in public spaces over the past twenty-five years. When I first got involved in this kind of work, we all came to it with the assumption that part of our job was to protect public spaces from “commercialization,” and from their being hijacked for private use and private profit. This was the basis for widely held community objections to the building of restaurants in Bryant Park. In the eighties, the leading New York City parks advocacy group, The Parks Council (now, New Yorkers for Parks), was categorically opposed to commercial activity in parks. But since then, in part due to the success of the Bryant Park Grill in contributing to the animation of a formerly neglected space, many of us have come around on this issue. We have come to the realization that appropriately sited, curated and regulated commercial activity is a positive generator of activity in public spaces. The extent of commercial activity is a question of careful balancing of demands by prospective users and activities. My colleague, Fred Kent, of Project for Public Spaces, points to Tivoli Gardens in Copenhagen and Granville Island in Vancouver as vibrant, attractive public places that are almost entirely set over to commercial activity.

Vending on Jamaica Avenue, Jamaica, Queens

However, sidewalk vending in New York City, as it is currently regulated, in my experience is a heavy contributor to the sense of public spaces being out of social control in many places where communities are working to improve the quality of life. On Jamaica Avenue in Queens, there are many days when vendors seem to be everywhere; selling from tables, out of large trailers parked on the sidewalks and directly off the ground. They crowd the sidewalks and leave trash and grease in their wake. When people come to Jamaica Avenue and tell me that they don’t feel comfortable shopping there, when I probe I find that the uncontrolled atmosphere created by vending is a big part of what these first time visitors are responding to.

The conventional mobile food cart

Local elected officials are generally unsympathetic to pleas from merchants, property owners and community board members to do something about this problem. First, some advocates and ideologues see this as a “big guy” versus “little guy” issue: that is that the folks with stores are trying to eliminate competition from people with carts and tables (This was a point of view loudly articulated by New York City Council Member Anthony Weiner in the 90s). They see street vending as a means of entry-level entrepreneurship for recent immigrants and others with limited ability to raise capital. They cite the long history of sidewalk vending in New York City, conjuring up a vision of sidewalk peddlers on the Lower East Side one hundred and fifty years ago. Also, the complexity of the current regulatory scheme leads most policy makers who look closely at sidewalk vending to throw up their hands. The lack of a legislative response drives brick and mortar retailers (who pay rent for the space they occupy) crazy.

Traditional NYC newstand

This complexity is a major problem. It makes the job of the Police Department, which ends up having to enforce the rules, extremely difficult and frustrating. The police officer on the beat certainly has many other issues with which to be concerned. NYPD has had a sidewalk peddler unit, with a number of officers well versed in the arcana of vending regulation – but they have always been a small group focused on midtown and downtown Manhattan. There are few enforcement resources available for other commercial areas of the city. In addition, the sanctions available to enforcement agents are generally not terribly useful. Vendors regard tickets written for violations as a cost of doing business. Without sustained, day-in and day-out enforcement, vending in most places is essentially unregulated.

Lobster roll anyone?

The regulation of food vending is made even more complicated by the rise of the food truck – which has become the vanguard of gentrification and a symbol of urban food culture. Essentially, there is no scheme of regulation for food trucks in New York – beyond parking regulations. And, what’s the recognizable legal difference between a truck at the curb selling lobster rolls and a sidewalk cart purveying dirty water dogs? Here we get into the potential problem of legislating in favor of hipster aesthetic preferences for lobster rolls over knishes. One thing we do know is that mobile vending carts have metastasized in the last decade. At one time they were all about the same size, perhaps 4’ x 12’. Their size is regulated by DOT rules requiring sidewalk clearances for pedestrians and space between carts and various other objects of street furniture. But with the dawning of the new century some clever cart builder figured out that you could fit MUCH LARGER CARTS for placement on many sidewalks outside of midtown, and even in some midtown and downtown locations. As a result, mobile food carts have become long and tall – most with garish displays of flashing lights.

The mobile food vending behemoth

The number of mobile food vending carts is limited by a cap on the number of permits issues by the City (in this case the Department of Health – adding another layer of complexity). The places where food carts can go are limited not only by where they can fit, but also by complex a list of streets and blocks on which food carts are prohibited: which no one tasked with enforcing the rules could possibly memorize. Some of these prohibitions are the results of hearings held by the City in the late 90’s as an attempt to bring some order to the chaos. With the rise of the larger mobile cart and the restriction of more Manhattan streets, many vendors chose to leave Manhattan and locate in commercial districts in the other boroughs. At the same time, Venders of non-food items are subject to a separate set of locational rules, with an entirely different set of prohibited streets. Vendors of First Amendment material (which includes calendars, CDs and children’s’ board books) are permitted to sell wherever other vendors are permitted to sell.

Disabled veteran peddler.

The First Amendment vendor regulatory scheme is complicated by the fact that under a post civil war state law, disabled veterans were exempted from almost all regulation. Given that First Amendment vendors could be wherever other vendors were permitted, and that disabled veteran vendors could sell almost anywhere, First Amendment vendors, too, can sell almost anywhere. Got it? An attempt to impose some level of regulation on disabled veteran peddlers in the late 90’s in the state legislature resulted from a colossal lobbying effort by the City, opposed by state veterans groups. A scheme was enacted by the legislature that prohibited disabled veterans from selling on most streets downtown and in midtown. Legislators said that the battle between proponents and opponents of the bill was the “bloodiest” they had seen (with major league backroom arm twisting from both sides), and the experience, they said, was one they would not choose to repeat. As a result, when the legislation expired as a result of a sunset provision in the early oughts, no rational person was prepared to attempt to revive it – and vending chaos again ensued.

I am convinced that there is a positive place for well-located, well-designed vending in urban spaces – particularly for food. Street food is solidly established as part of the urban fabric. But street vending in New York City today is a major inhibitor to an improved perception of public space, particularly outside of Manhattan, and remains a serious obstacle to enhanced quality of life in downtowns and increased levels of economic activity around the city.