Opinion
02 Civ. 8176 (JSM)
September 24, 2003
OPINION ORDER
Plaintiff Ralph Baker is a street photographer, who, for a fee, takes photographs of persons in public places in New York City. He particularly seeks to offer his services to the passing public at New York City landmarks like Times Square or the Rockefeller Center Christmas tree, and to mark special events, like outside the marriage bureau at 1 Centre Street in Manhattan. In this action, Mr. Baker contends that the City's policy and practice of applying to him the provisions of the General Vending law that are applicable to First Amendment vendors, and of refusing, through the Mayor's Office of Film, Theatre and Broadcasting, to issue to him a Permit for Still Photography pursuant to the New York City Charter, § 1301(1)(r) and New York City Administrative Code § 22-205, violates the First Amendment and the Equal Protection clause of the Fourteenth Amendment of the United States Constitution. Mr. Baker also alleges that he has been deprived of income and has been the victim of unlawful arrests pursuant to these allegedly unconstitutional policies and practices. Defendants have moved to dismiss the Complaint pursuant to Fed.R.Civ.P. Rule 12(b)(6). Plaintiff has cross-moved for summary judgment in his favor.
This action is the third that Mr. Baker has filed in this Court relating to this subject matter. In each of these earlier cases, this Court rejected the same claims and arguments that Mr. Baker makes here. In Baker v. The Peddlers Task Force, New York City Police Department, 96 Civ. 9472 (LMM), 1996 U.S. Dist. LEXIS 19140 (S.D.N.Y. December 30, 1996), Judge McKenna held that as a First Amendment vendor under Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997), Mr. Baker could not be prosecuted for his failure to obtain a general vendor's license, but made it clear that this ruling was "not to be understood to mean that plaintiff does not remain bound by the place restrictions applicable to persons holding non-food vendor's licenses." 1996 U.S. Dist. LEXIS 19140, *4. In a subsequent decision in that case, Judge McKenna further found that Mr. Baker's activities were properly subject to the provisions of the New York City Administrative Code applicable to First Amendment vendors, §§ 20-465(a)-(f), (i), (k), and (m)-(q), and that the Mayor's Office was not required to issue a Permit for Still Photography to Mr. Baker for the purpose that he intended.Baker v. The Peddlers Task Force, New York City Police Department, 96 Civ. 9472 (LMM), 1997 U.S. Dist. LEXIS 19438, *5-6 (S.D.N.Y. December 1, 1997). In support of these holdings, Judge McKenna analyzed the differences between the types of activities covered by the general vending law, and those that come within the purview of the Mayor's Office, noting that permits for still photography are issued by the Mayor's Office for brief events that occur over a limited period of time in a single location, and not for extended periods of time and myriad locations. Moreover, Judge McKenna pointed out, the permits issued by the Mayor's Office authorize only the shooting of photographs or films; they do not give the permit holders the right to sell photographs on the street in a manner that would violate the general vending laws.
Similarly, in Baker v. City of New York, 01 Civ. 4888 (NRB), 2002 U.S. Dist. LEXIS 18100, *19 (S.D.N.Y. September 25, 2002), Judge Buchwald stated, with respect to Mr. Baker's claim that his requests to engage in street photography should be regulated by the Mayor's Office pursuant to the New York City Charter, rather than pursuant to the general vendors statute, that the federal court is "obliged to `defer to the City's construction of a regulation it is charged with administering.'" She continued,
We do not sit to instruct the City on precisely how to regulate the myriad commercial interactions that take place in its public spaces and its concern for public safety, but rather to determine whether the City's regulatory scheme, as applied to Mr. Baker's street photography, passes constitutional muster.Baker v. City of New York, 2002 U.S. Dist. LEXIS 18100, *19. Judge Buchwald then held that the City does not run afoul of either the First Amendment or the Equal Protection clause by regulating Mr. Baker as a First Amendment vendor. In addition, Judge Buchwald found that the limitations imposed by the general vending statute that are applicable to First Amendment vendors, including Mr. Baker, constitute reasonable time, place and manner restrictions that do not run afoul of the First Amendment.
In support of that holding, Judge Buchwald found that the City's determination as to which regulations applied to Mr. Baker's street photography was "entirely principled, " since "a photographer who wishes to interact with pedestrians every day in the most congested areas of the City presents different problems than does a photographer who will shoot for only a day or two and wishes to avoid interaction with pedestrians."Baker v. City of New York, 2002 U.S. Dist. LEXIS 18100, *22 n. 20.
In his Complaint, Mr. Baker also seeks money damages for allegedly unlawful arrests to which he was subjected while attempting to work in various areas around the City. Mr. Baker made this and similar claims in his previous case, and Judge Buchwald found that there was no reason to find the arrests unconstitutional. 2002 U.S. Dist. LEXIS 18100, *37-38. All of the arrests listed in his current Complaint (on December 16, 2000, January 21, 2001, April 4, 2001, May 10, 2001, October 28, 2001, December 1, 2001, December 16, 2001, and December 23, 2001) took place prior to Judge Buchwald's decision in that action, and three of them (on April 4, 2001, October 28, 2001, and December 23, 2001) were specifically challenged in that action. Accordingly, these claims were, or could have been, decided previously.
Judge Buchwald stated that, as a First Amendment vendor, Mr. Baker is permitted to take and sell photographs of tourists at any site in the City as long as he does not violate New York City Administrative Code § 20-465 by, for example, setting up a table, cart or similar device on any sidewalk that is less than 12 feet wide, § 20-465(a), or in other restricted areas; by setting up his cart other than adjacent to the curb in areas in which carts and stands are permitted, § 20-465(a); or by violating restrictions like those that forbid standing over a subway grating, § 20-465(m), in a bus stop, § 20-465(e), or within five feet of a bus shelter, § 20-465(q)(2). He also must comply with police officers' directions to move under exigent circumstances. § 20-465(k). Baker v. City of New York, 2002 U.S. Dist. LEXIS 18100, *26. If, in the future, Mr. Baker experiences harassment from the police in spite of his compliance with all regulations applicable to First Amendment vendors, as he seems to imply in some of his submissions, he may well have a right to challenge those actions, without challenging the constitutionality of regulations, policies and procedures that have been held constitutional.
In light of the foregoing, it is clear that all of Mr. Baker's claims are barred by the doctrine of res Judicata. Under that doctrine, "once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning the transaction, or series of connected transactions, out of which the first action arose." Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002). See also Bank of India v. Trendi Sportswear, Inc., 239 F.3d 428, 439 (2d Cir. 2000)("Upon a final judgment on the merits, the parties to a suit are barred as to every matter that was offered and received to sustain or defeat a cause of action, as well as to any other matter that the parties had a full and fair opportunity to offer for that purpose."). Mr. Baker did not appeal the decisions in either of his previous cases in this Court. Therefore, those judgments are final and binding as to all of the claims presented here. Conclusion
Even if the decision in Baker v. City of New York, 01 Civ. 4888 (NRB), were not technically res judicata in this action, this Court would find Judge Buchwald's meticulously reasoned decision to be highly persuasive and would reach the same result.
Mr. Baker contends that res judicata does not apply because his previous case reflected the views of his attorney, rather than his own, and that he lost before Judge Buchwald due to the incompetence of his attorney. That a litigant is displeased with the performance of his attorney in a previous action simply does not affect the binding nature of the judgment entered in that case. Plaintiff's recourse in that situation would have been to appeal Judge Buchwald's decision — not to disregard it and file a new action. Accordingly, Mr. Baker is advised that if he is dissatisfied with the decision herein, he should consult the Pro Se office regarding procedures related to his right to appeal.
For all of the foregoing reasons, Plaintiff's motion for summary judgment is denied and Defendants' motion to dismiss is granted.
SO ORDERED.