Does The City Know Its Own Policy On Park Performers?
Earlier this week, the Voice brought you very confusing news: The city, which just decided to let performers play in parks, might be considering kicking them out, as detailed in a recent legal filing.
When the city decided to OK entertainers, Department of Parks and Recreation officials said that performers had always been allowed. No rules had changed, officials said, even though these same performers hadn't been allowed in parks for the last two years.
But on Monday, an affidavit filed by an NYC attorney claimed that performers actually were not allowed at parks, and never had been: "It remains the Parks Department's position that the Expressive Matter Vending Rules cover the activities of performers, musicians and buskers who entertain in exchange for a donation. "
Because we don't like being confused, we put in a call to the Parks and Rec, as well as the City's law office, to see what's up. We also sent e-mails. We put in more calls and sent more e-mails. After four days, here's all the Department could tell us: "The new expressive matter vendor rules have not changed. Parks rules have not changed."
Of course, this didn't answer our question -- obviously, something had changed, because performers were allowed to entertain whereas they previously weren't. There seem to be several ways to explain this.
For starters, either the rule changed, or the City's enforcement of the rule changed.
If it's the former, then we've been mislead several times, since we've been repeatedly told that it had not changed. If it's the later, however, here are some possibilities: The City decided to stop enforcing a rule prohibiting performers or, the City decided that it never prohibited performers in the first place -- which would make keeping them out of parks statutorily questionable.
We brought this up to the city, asking:
Thanks for getting back to me.
I'm still a bit confused, because it seems like something has changed -- I have been told that the rules apply to performers and I have also been told that they don't apply to performers. And, here's what a City Attorney explained in a recently filed court memo:
"It remains the Parks Department's position that the Expressive Matter Vending Rules cover the activities of performers, musicians and buskers who entertain in exchange for a donation. However, in light of the New York State Supreme Court, Appellate Division, First Department's February 23,2012 decision re New York Skyline. Inc. v. City of New York, 94 A.D.3d 23 (App. Div. 1'st Dept. 20120), the Parks Department has temporarily stopped enforcing the Expressive Matter Vending Rules against people who entertain in exchange for a donation in the City's parks....If the City is successful on its appeal of that decision the Parks Department will resume its enforcement efforts. If the City is not successful, the Parks Department will consider other solutions to address its interests."
"Finally, contrary to plaintiffs' allegations, recent press accounts which stated that the Expressive Matter Vending Rules are not presently being enforced against most so-called performers, musicians and buskers, are not indicative of a Parks Department determination that only artists who sell expressive matter in City parks should be "targeted" for enforcement...as a preliminary matter, it remains the Parks Department's position that the Expressive Matter Vending Rules cover the activity of performers, musicians and buskers who entertain in exchange for a donation. As set forth in 56 RCNY 1-05(bX1), the act of vending includes selling or offering for sale, hire, lease or let, or providing or offering to provide services or items in exchange for a donation. The Department has interpreted the word 'services' in this definition to include entertainment. Thus, the Department had determined that performers and musicians who provide entertainment in exchange for a donation were providing a service in exchange for a donation (albeit an expressive one) and, thus, were required to do so in a manner that complied with the Expressive Matter Vending Rules...
"However, in or around March 2012, I was advised by the Parks Department's General Counsel that, as a result of a decision rendered by the New York State Supreme Court, Appellate Division, First Department on February 23,2012, in a case called In re New York Skyline. Inc. v. City of New York, PEP Officers should temporarily stop enforcing the Expressive Matter Vending Rules against people who entertain in exchange for a donation in the City's park."
And so broken down, it seems like the City claims that the vending rules have always applied to entertainers, but have just been put on temporary hiatus because another lawsuit (Skyline) puts to question these regs. This seems to directly contradict what we were told before -- that these guidelines never applied to entertainers in the first place.
Again, here's what we were told earlier: "Expressive matter vending rules do not apply to buskers and entertainers."
Any insight into this would be greatly appreciated.
We then sent a follow-up e-mail, to clarify any confusion:
Another way: Do these rules apply to entertainers, yes or no? What is the City's final say on this? If this is a change, why the change? If this is simply a policy hiatus, why the hiatus?
Here's what a Parks spokeswoman responded:
You bet. I cannot speak for attorneys. Please contact them. Thanks.
Funny, because all throughout the week, the City's legal team had told us to go to Parks and the Department's legal team, who told us to go back to the City and vice versa.
A spokeswoman from the city's legal team then reached out to us Thursday afternoon, and promised to get us an answer to these simple questions. We didn't hear back. We rang once more this morning. Still no word.
So, yeah: We don't know whether performers are allowed or what, because we've been told drastically different things, and the people who should know seem a bit fuzzy on the issue, too. We'll update when we get to the bottom of this.
Follow Victoria Bekiempis @vicbekiempis.