Opinion
July 26, 2001.
Robert M. Morgenthau, District Attorney of New York County, New York City (Vincent Rivellese and Patrick Hynes of counsel), for appellant.
Center For Consitutional Rights, New York City (Robert T. Perry, Barbara J. Olshansky and William Goodman of counsel), for respondents.
Before: Stanley Parness, P.J., William J. Davis, Lucindo Suarez, JJ.
Orders entered August 12, 1998 (Lucy Billings, J.) and February 8, 1999 (Troy K. Webber, J.) affirmed, for the reasons stated in the decision of Lucy Billings, J. at the Criminal Court (see, 178 Misc.2d 958, 967-968).
We sustain the dismissal of these companion criminal prosecutions on nonconstitutional grounds (see, People v. Davis, 43 N.Y.2d 17, 29), and note our agreement that the permit requirements contained in the New York City Department of Parks and Recreation regulations here at issue (56 RCNY 1-05[b], 1-03 [c][1]) are not properly enforced against general vendors, such as defendants herein, who exclusively trade in written matter. The agency permit system directly contravenes the provisions of New York City Administrative Code § 20-473, which explicitly and unambiguously exempt general vendors "who exclusively vend written matter" from compliance with the "written authorization" or permit requirements contained elsewhere in the Code (see, Administrative Code of City of N Y § 20-465[j]). While Administrative Code § 20-473 confers upon the Commissioner of the Department of Parks and Recreation the authority "to regulate the vending of written matter in a manner consistent with the purpose of the parks and the declared legislative intent of this subchapter", that grant of authority may not be read so broadly as to allow the Commissioner to criminalize through administrative fiat that which the City Council has legislatively authorized. An administrative agency "cannot by its regulations effect its vision of societal public choices (citations omitted), and may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer . . . The agency cannot make unlawful what the Legislature still has on the books as lawful." (Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 242-243.)