The New York Association of Grocery Stores, NYAGS is a coalition of local New York City grocers fighting to stay alive as special interests and big chains continue to encroach on the businesses our families have maintained for decades. We have formed NYAGS, New York Association of Grocery Stores in order to stop the assault against grocery stores as well as the food service industry all over New York by the Mayor and other government officials. NYAGS will play a substantial role in being the lead advocacy group in redefining how the city treats our retail establishments throughout NYC. NYAGS will promote unity and financial stability to small business throughout NYC.

“The city continues in its quest of becoming a nanny state in regulating every aspect of the lives of the citizens of New York City and in the process, crushing small business” said David Schwartz. “NYAGS will vigorously protect business throughout New York from over reaching and unnecessary regulatory measures. NYAGS will help unite the fight against the recently announced Big Soda Ban by the NYC Board of Health”, said Brad Gerstman.

As Wal-mart continues their push to enter the New York City market and liquor stores continue to block the entrance of wine into grocery stores, we’re fighting to stay in business during these tough economic times. With only 2000 liquor stores in New York State why do their businesses need to be protected while ours do not?

The initial issues to be taken on by NYAGS are:

  • Fight back against the ‘Nanny-State” and stop Mayor Bloomberg’s soda ban
  • Enable wine to be sold in Grocery stores
  • Pass legislation to preclude the unconstitutional ticketing of trucks delivering to grocery stores
  • Fight for the prospect that all tobacco products must be sold in brick and mortar NY stores and not Indian reservations, internet and black market.
  • Restore fairness in taxation of cigarettes, cigars, tobacco products and motor fuel
  • Fight against all legislation and regulation that mandates what your customers can and cannot eat
  • Any regulation of tobacco should be done by the FDA and not New York State
  • Fight the Wal-Mart entry into the NYC marketplace
  • Fight against tax credits which favor new supermarkets that enter the NYC market where the employees are non-union and put the existing stores at a disadvantage

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From Crains New York:

The City Council is looking to amend the law governing street vendors, with both sides of the debate—vendors and stores—looking for legislative relief. Vendors want the cap on licenses lifted, while neighborhood retailers want to restrict vendors from operating directly in front of their stores.

The leader of the reform movement in the council is Councilwoman Julissa Ferreras-Copeland, who is arguing for a balance. One measure being discussed would limit where vendors could set up shop. For example, Ferreras-Copeland said, the rules might prevent five fruit vendors from working on the same block, or a fruit vendor from setting up in front of a fruit store.

“We have to regulate vendors without hurting the brick-and-mortar [businesses] in our community,” she said.

However, there is one significant roadblock to the vendor-location reform that Ferreras-Copeland appears to be advocating: a 1943 court decision that council lawyers feel restricts their ability to restrain vendors from operating outside of retail stores. Does this little-known ruling tie the council’s hands?

We examined this decision—Good Humor v. New York—carefully. Leaving aside that it is 73 years old, it doesn’t appear that what the court said in 1943 is an insurmountable obstacle to the balance that the council member would like to achieve.

In the first place, the old case was directed at legislation that banned on all street peddling. At the same time, the court also said that the city’s rationale for the ban—restricting competition—was too broad, as peddling was a recognized feature of city life: “Certainly that power is not broad enough to prohibit use of the street for a lawful business, recognized by statute, for the sole purpose of protecting rent payers and taxpayers against competition from others who do not pay rent or taxes,” the court wrote.

But the court also recognized that the city could restrict vendors if it had legitimate reasons that were not directly related to competitive factors. As the court opined, “The question here presented is whether the Local Law is reasonably calculated to promote such ‘other or additional purposes’ …”

One of the most salient criteria the city uses for the restriction of uses in general relates to the issue of public health. In fact, the ancient court decision cites this a number of times. Ironically, when it comes to restricting vending, the city has enacted law that just does that—and uses health as its main justification.

In 2008 the city passed so-called Green Cart legislation that added 1,000 produce peddlers to city streets. However, according to the statute, these carts were only to operate in designated “underserved areas” that the city identified and embedded in the law. As then Department of Health Commissioner Thomas Frieden testified: “Green Cart vendors found operating outside their designated areas will be considered operating without a permit and could have their carts and goods seized.”

The green-carts law underscores the fact that under its broad statutory authority—and in particular to advance public health—the city can restrict vendor locations for the overall public good. There is, however, an even more compelling rationale.

The city’s Fresh Program, designed to increase access to supermarkets, recognized that supermarket preservation is a key to improving health. It stemmed from a study showing many low-income areas across the city were underserved by full-line neighborhood grocery stores. Lack of nutritious, affordable, fresh food in these neighborhoods has been linked to higher rates of heart disease, diabetes and obesity.

Peddlers, by hurting supermarket retention and growth (a produce peddler can cost a supermarket anywhere from $5,000 to $7,000 per week in revenue), harm food markets that sell not only produce but a wide range of other healthful foods. Under the aegis of the promotion of public health—a precedent set by the green carts legislation—the city has wide authority to decide where carts are located.

Legal opinions aside, if the council still feels constrained by the Good Humor decision, it can, through its unique political leverage, negotiate location restrictions with the vendor group that badly wants to have an increase in the number of licenses. Or it can bargain for enforcement that their group would find less onerous.

Any reform, then, of the peddler law that fails to include a restriction on vendor locations as they pertain to supermarkets, green grocers and healthy bodegas is a failure of will that ignores the needs of food retailers and the New Yorkers that rely on them for providing healthy food options.

Brad Gerstman is a spokesman for the New York Association of Grocery Stores.

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