Appeal No. 1000222 NYC v.

Sergei Rounovski May 27, 2010

Respondent, an unlicensed general vendor, appeals from three recommended

decisions and orders finding him in violation of Section 1-05(b) of Title 56 of the Rules
of the City of New York (RNCY) for vending merchandise in a park without a permit
from the Parks Department, Section 1-03(b)(6) of 56 RCNY for vending merchandise in
a park without a permit from the Parks Department, and Section 1-03(c)(1) of 56 RCNY
for failure to comply with the lawful direction of a Parks Department officer. The notices
of violation (NOVs) were issued by the same issuing officer (IO) on January 15, 2010. In
the NOVs charging violations of Sections 1-03(b)(6) and 1-05(b) of 56 RCNY, the IO
stated that Respondent was selling his merchandise without a permit. In the NOV
charging a violation of Section 1-03(c)(1), the IO stated that “Respondent was asked to
pack up his belonging[s] and leave the Parks property. The respondent refused to comply
with my request.” At the hearing, Respondent testified that he was exempt from the
Parks Department permit requirements because he was selling handmade matryoshkas,
which he asserted were art. The administrative law judge (ALJ) found that the “Russian
dolls” were primarily crafts, not art, and sustained the NOVs. The main issue on appeal
is whether the matryoshkas were art, and Respondent was therefore exempt from
obtaining a permit from the Parks Department.

Section 1-03(b)(6) of 56 RCNY prohibits any person from conducting any

activity for which a permit is required unless such permit has been issued, all terms and
conditions thereof have been complied with, and the permit is kept on hand for
inspection.

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.

On appeal, Respondent reiterates that the hand-carved, hand-painted matryoshkas

are individually created and signed by the artist. Respondent asserts that the matryoshkas
are sculptures and therefore entitled to First Amendment protection. Respondent submits
photographs of the matryoshkas he sells. Because Respondent offered samples or
photographs of the matryoshkas at the hearing (although the ALJ declined to look at
them), the Board accepts the photographs into the record.

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).