A man who painted faces and made balloons in New York’s Central Park in exchange for donations cannot continue a lawsuit claiming the city cracked down on him selectively, a federal trial court in Manhattan has ruled.
The city did not single Alexander Alhovsky out for special treatment when it fined him for vending outside locations designated for so-called expressive matter vendors, according to a ruling released August 19 by the U.S. District Court for the Southern District of New York.
Alhovsky, who vended under the name Sasha the Clown along a walk that connects the park’s southeast entrance to the Central Park Zoo, was fined by police on two occasions in July 2010 and arrested on another for allegedly failing to abide by a rule that requires expressive matter vendors to limit their activity to spots designated by park officials.
Park police also charged Alhovsky’s spouse, Oksana Goncharenko, with storing personal belongings in violation of park rules.
The couple claimed that though they were among five mobile vendors in the vicinity of the walk – including a puppeteer, a juggler and a balloon-shaper – officials pestered only them in violation of federal law, which requires that the government treat all similarly situated people alike.
The court disagreed. “As balloon-shapers and facepainters, plaintiffs constituted ‘expressive matter vendors,’ who provided their art to customers in exchange for donations,” Judge Naomi Reice Buchwald wrote in an opinion dated August 19. “By contrast, some of the named comparators, including four of the five named in response to interrogatories, were pure ‘entertainers’ – i.e., jugglers and puppeteers who did not sell their wares.”
At issue are rules adopted by the city that limit expressive matter vendors to vending in so-called green spots, which the city makes available daily on a first come, first serve basis. The vendors may perform their acts outside the green spots on a mobile basis, which means without the use of a cart, display stand or other device.
The city’s focus on Alhovsky and Goncharenko to the exclusion of other vendors in the vicinity demonstrated an intent to discriminate against the couple, the duo charged.
The number of violations that park officials handed out to vendors dissuaded the court. “Plaintiffs’ failure to establish differential treatment in their deposition testimony is only compounded by the documentary data, which indicates that, out of twenty-three notice of violations issued during a two-year time period to mobile vendors, ten of which were issued on Wien Walk, plaintiffs received only four such tickets,” Buchwald added.
The court also declined to hear a negligence claim by Alhovsky, who charged that he had been injured while rushing to claim a green spot from which to vend. Alhovsky can pursue the claim, which arises under New York law, in a state court, Buchwald ruled.