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Efforts by the New York City Council to replace the city’s 300 independently run newsstands with a single franchise took a step forward Wednesday when a Manhattan judge rejected the preliminary injunction motion filed by a coalition of current owners and dismissed six of their seven claims. The only cause of action that Supreme Court Justice Michael D. Stallman allowed to proceed entailed the plaintiffs’ contention that the replacement of their actual newsstands, which will be removed and possibly destroyed under the plan, constitutes a taking. The plaintiffs ? 11 individual newsstand owners and operators and the New York City Newsstand Operators Association ? sought to prevent the city from implementing Local Law 64. The 2003 law amends the Administrative Code, replacing the current individual-owner scheme with a single owner that will rebuild and maintain the newsstands at its own expense. The city is expected to announce that owner next month. The regulations aim to, among other things, decrease congestion and obstructions. Toward this end, a number of newsstands would be re-located when replaced. Those unable to find new spaces within 500 feet of their previous locations or to comply with Americans with Disabilities Act regulations will be permanently shuttered. (The numbers are contested. The plaintiffs claim 64 stands would be forced out of business; the city says less than 20 would be.) The contested law also allows advertising on newsstands, which previously had been prohibited. Rights to advertising space will be divided between the new franchise (77.5 percent) and the city (22.5 percent). Current owners will be allowed to operate out of the new newsstands at no cost. New licensees, however, will be required to pay the franchisee the cost of construction, as well as regular license fees. The plaintiffs moved to preliminarily enjoin the city from implementing Local Law 64 and to enjoin it from creating the franchisee, the Coordinated Street Furniture Franchise. The newsstand owners argued, among other things, that a number of the law’s provisions violated their First Amendment rights to free speech. The prohibition of placing newsstands on sidewalks in such a way as to create a “hazardous condition,” for example, is unconstitutionally vague, they contended. Justice Stallman disagreed. “Local Law 64 does not embrace highly subjective criteria for its siting rules; neither does it omit guidelines for the interpretation of its provisions, nor allow wholly discretionary revocation of licenses,” he held in Uhlfelder v. Weinshall , 109890/04. The decision will be published Wednesday. The plaintiffs also contended that the advertising provisions will compel operators to engage in involuntary, unwanted speech. “At least two of the plaintiffs, one Muslim, the other Hindu, state that they are deeply religious, and, therefore, do not sell magazines containing nudity or obscene materials, and that they would be extremely disturbed if sexually suggestive or provocative advertising were placed on the newsstands they operate,” Justice Stallman wrote. The judge found that argument unsound and the precedent it would establish dangerous. “Plaintiffs here cannot legitimately assert that the anticipated advertising or public service messages are compelled speech. Rather, they seek to limit and thereby compel the speech of others ? the franchisees, advertisers and the City,” he stated. “[T]hey have no more right to control the advertising on the structure from which they operate than the commercial or residential tenants of a building have to control advertising on the side of the building,” he added. “To rule otherwise could have myriad unforeseen consequences for real property and landlord-tenant law and may impinge on the free speech rights of property owners and advertisers.” Justice Stallman therefore granted six of the city’s seven motions for summary judgment. Takings Motion He did deny one such motion, however, thereby allowing the plaintiffs’ taking claim to continue. The plaintiffs contended that the new law would deprive them of the resale value of their newsstands, which they built or purchased for $15,000 to $35,000 each. (At that rate, the newsstands to be removed are worth a total of $4.5 million to $10.5 million.) “Whether Local Law 64, has, in fact, completely stripped plaintiffs’ current newsstand structures of all of their value has yet to be determined, but plaintiffs have sufficiently stated a claim and defendants have failed to meet their burden of establishing as a matter of law that there can be no regulatory taking,” Justice Stallman ruled. A hearing on the takings issue is scheduled for Oct. 11. Andrew G. Celli Jr., Eric Hecker and Mariann M. Wang of Emery Celli Brinckerhoff & Abady represented the newsstand owners. “From the point of view of the takings claim, I think it was an important victory,” Mr. Celli said. “We think that it stands for the proposition that the city cannot simply seize these newsstands without compensating the owners.” He added, “We’re obviously disappointed on the other claims. We think there are many appealable issues.” Virginia Waters, senior counsel in the Administrative Law Division of the city’s Department of Law, said in a written statement that the city is “extremely pleased” with the decision. “The court upheld a law which will bring about the replacement of existing shabby newsstands with brand new state-of-the art structures,” she said. “This will not only beautify the city streets but will provide the city with revenues from advertising on the newsstands. And existing newsstand owners will be allowed to operate out of the newly constructed newsstands at no cost.” ? Mark Fass can be reached at [email protected] .

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