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Times Square Joker Says Costume Law Is "Straight Up Fascism"

Christopher Robbins

Published Nov 20, 2014

Modified Nov 20, 2014

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William Alatriste for the New York City Council

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Christopher Robbins

Published Nov 20, 2014

Modified Nov 20, 2014

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Yesterday the City Council Consumer Affairs Committee heard testimony relating to a bill that would require costumed characters across New York City to register with the Department of Consumer Affairs in order to accept tips or donations. "This straight up seems like fascism to me," Keith Albahaye, a.k.a. The New York Joker, told the councilmembers. "The First Amendment is the First Amendment. I'm not gonna be allowed on 52nd Street and Broadway in the United States of America?"

At the outset of the hearing, the bill's sponsor, Bronx Councilmember Andy King, testified that "the bill is not designed to take away anyone's First Amendment rights," and he added that his aim wasn't to raise questions about a performer's immigration status either. King said that his own five-year-old daughter was traumatized by an encounter with a character this past summer.

"Strawberry Shortcake didn't get the proper tip she wanted, she ripped off her own head and started to berate her father and her family," King said. "In the mind of a five year old, how do you comprehend a head being snatched off? In cartoons you can erase the head and you can draw it back on, but in human life you can't do that. We want to make sure we can maintain that kind of innocence for our children and our families."

Midtown South Commander Edward Winski testified that since 2009, the police have arrested 38 costumed performers in Times Square, 18 of those occurring this year. Most were for aggressive solicitation, but others were more serious, such as when a Spiderman struck a police officer and when Woody from Toy Story was arrested for sexually assaulted a woman by grabbing her buttock.

Councilmember Dan Garodnick, whose district covers a portion of Times Square, noted that King's bill merely reiterates the law prohibiting aggressive solicitation, the enforcement of which is currently up to the NYPD.

"Even under the bill as proposed, those same subtle questions exist," Garodnick said. "I think it still leaves open a lot of those questions which ultimately, if the police are not there to enforce, we're just where we are today."

Int. 467 would make it illegal "for any costumed individual while wearing a costume to solicit in return for posing for photographs or otherwise interacting with the public in public places without having first obtained a license."

Steven Shiffrin, professor emeritus at Cornell Law School and the author of numerous books on the First Amendment, told us in September that a law like this may not pass constitutional muster.

"Wearing costumes is a form of First Amendment expression, and the First Amendment does not permit government to charge its citizens as a pre-condition of exercising their rights," Shiffrin wrote in an email. "This principle takes on special force when the charge is exorbitant and when the purported justification for its imposition is so obviously a pretext."

A representative from the Department of Consumer Affairs also revealed that in addition to the $175 fee for the two-year license, characters would have to pay a $75 fingerprinting fee. There are 14 other licensed professions that require fingerprinting, including auctioneers, auto repair workers, bingo hosts, process servers, pawn brokers, and tow truck drivers. The representative noted that the costume license would be the cheapest, though a general vendor license costs $200. A tow truck company pays $600 per truck.

"As I read it, the real goal of the bill is to reduce the number of individuals engaged in this activity, and this reduction would be accomplished by creating a barrier of a costly license," Brooklyn Councilmember Robert Cornegy testified. "There are existing criminal penalties to deal with every incident of negative behavior a costumed character has been accused of. The vast majority of these individuals…are law abiding, and have never engaged in wrongdoing." The latter assertion was one seconded by the police department.

King's bill, which is supported by 22 members of the City Council and Public Advocate Letitia James, would allow DCA to waive the registration fee if they could prove they had a hardship by presenting tax forms, bills, or proof that they are on public assistance. The bill would need 26 votes in order to pass, plus the mayor's signature to become law.

Asked about the mayor's position on the bill, spokeswoman Ishanee Parikh said, “While most costumed individuals are not engaging in criminal activity, the aggressive solicitation and assault by costumed characters in Times Square will not be tolerated. We look forward to discussions with stakeholders, elected officials, and community members as we find the right solution.”

Alberta Guerra, a single mother of three, testified that she dressed up in a Hello Kitty costume she made herself in order to support her family.

"I enjoy being in Times Square, some of the young people come running up to me, and hug me, it's a nice feeling," she said through an interpreter. "I've been doing this the last eight years. Some tourists give and if they have, they give, and if they don't, they don't, because some people don't have either. I'm a mother of three children who has had several accidents on my job, so I dress up in Times Square, and you tell me I do not have a right to do what I'm doing now?"

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Christopher Robbins

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Christopher Robbins is a New York City reporter covering transportation, affordable housing, local politics, and criminal justice. His work has also appeared in New York Magazine, The Village Voice and The New York Times. Chris is a graduate of Patrick Henry High School in Roanoke, Virginia, and enjoys biking to Fort Tilden in the summertime.

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