Thursday, January 31, 2008

Cart Hearing to be Contentious

The City Council's Consumer Affairs Committee will hold its first hearing on Intro 665 today, and the meeting will undoubtably be contentious since the city has been mobilizing its health advocacy armies to come out in support of the measure. It always seems that advocates have a great deal more free time to come out than do the hard working store owners who find it really difficult to leave their shops.

That being said, however, there does appear to be room for modifications to the original proposal. As the NY Sun reports this morning: "Unions and small business groups have expressed concerns that the added competition could hurt supermarkets. Council Member Leroy Comrie, a sponsor of the proposal, said yesterday he expects the council to modify the bill to address some of these issues, but that the bill's core goal of providing greater access to healthy food should remain. "I think all of this is something that clearly is workable," he said."

Supermarkets are concerned, but the real vulnerable businesses are the thousands of green grocers and bodegas that sell produce. Green grocers in particular have no other product lines to fall back on if their sales are cannibalized by street peddlers. And why does the city have such obvious contempt for its smallest and most vulnerable businesses?

If Leroy Comrie is correct, and we believe that he is, about the desirability of "providing greater access" to healthy food, than why isn't the city developing a food policy plan that would incentivize the tax paying store owners to expand their sales of fresh produce? How about the reduction or sheer elimination of the licensing fees-levies that can run around $500 a year? How about reducing the fines and violations that have made fruit stands-among other small stores-cash cows for city regulators-to the tune if thousands of dollars per store, per year? How about eliminating the commercial real estate taxes for landlords who rent to supermarkets and green grocers?

Instead we are given the peddler legions, push carts without any location reestrictions that will inevitably set up shop in front of the neighborhood food outlets. Yet the city claims that it is powerless to restrict peddler locations because of the 1943 Good Humor ruling. Here's a brief excerpt from one legal opinion we'ver received on this:
"I think that the overall the best argument is that the city already limits the number of vendors out of a concern for traffic and safety and that this bill’s expansion of the number of vendors is only occurring because of a competing public health concern. Therefore, if there are areas where there is produce and therefore the health rationale doesn’t exist it’s reasonable that the city would not increase permits in that area. An allowable and restricted produce vending area then would be substantially different and not, as is prohibited by Good Humor, solely the result of a desire to protect a class of businesses. Moreover, the stated purpose of the restriction should be to promote the legitimate government interest of balancing street traffic with the need for more produce. Courts are generally loath to dig into actual, as opposed to stated, purposes especially when the class potentially discriminated against (vendors) aren’t constitutionally protected (delineations that are protected include race, gender, disabilities, etc…)"

Location is, of course, only one problem with the bill. The other significant problem is enforcement-something that is almost completely lacking throughout the city. In a thoughtful letter we received from Council Member Gale Brewer, a supporter of the bill. she makes the following sound point:"In addition, I am acutely aware that problems develop between small grocers and vendors around the question of fair practice, as well the inevitable "turf wars" that arise when street vendors attract customers who have traditionally patronized the local store. In my immediate neighborhood, I have moderated disputes, for example, wherein proprietors of small grocery stores have complained to NYPD about vendor violations of the city code, and caused them to be ticketed on a frequent basis. One such practice involves street vendors who park a truck stocked with fruit next to their cart and use it to illegally replenish their display stock all day long.
According to the NYC Department of Health, it is illegal for the vendors to replenish their stock from the truck throughout the day. It is this kind of sharp practice, along with vendor "saturation" strategies and price undercutting, that makes street/store merchant conflict seemingly inevitable. It also suggests the difficulty of striking a fair and workable balance in law among the contending forces."

Brewer, who clearly is knowledgable about the problem says that the city needs, "guidelines on vendor practices that are clear, enforceable, and fair." To which we would add, a dedicated enforcement unit to insure that the guidelines are followed. That addition, along with a greater degree of location restriction, needs to be added to Intro 665 if the measure is to have any equity for the city's small businesses.