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Ad barge company claims city has ‘no authority’ over state-owned water

Mayor de Blasio files suit against Ballyhoo Media

March 28, 2019 Scott Enman
Lawyers representing Ballyhoo, a Miami-based ad barge business, claim the city has no authority over the waters surrounding New York City. Eagle file photo by Todd Maisel
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Mayor Bill de Blasio filed a lawsuit on Wednesday seeking to ban a 60-foot-wide advertising barge from operating around New York, but the company behind the boat claims the city has “no authority” to do so.

The law office representing Ballyhoo Media said in a letter to the city that the waters surrounding New York City are actually under the purview of the state.

“As New York State has jurisdiction relative to the lands under the East and Hudson rivers, state legislation is required in order to authorize local legislative bodies to adopt and enforce laws that apply to these bodies of water,” Derek Wolman, of Davidoff Hutcher & Citron, wrote.

“We are aware of no such legislation that would allow the city to apply its Zoning Resolution to these State-owned navigable waters.”

The letter cites numerous court cases, including Erbsland v. Vecchiolla, Town of Alexandria v. MacKnight and Town of Carmel v. Melchner, to support its assertion.

The lawsuit, filed against the Miami-based business in Manhattan federal court, seeks to impose fines of up to $25,000 per violation per day.

“Our waterways aren’t Times Square,” de Blasio said. “These floating eyesores have no place on them. Ballyhoo is operating in direct violation of the law, and we are filing this suit to put a stop to it.”

A bill introduced on Thursday by Councilmembers Justin Brannan and Mark Levine would slap a larger $100,000 fine on Ballyhoo and other barge businesses for violating city-zoning rules, but de Blasio doesn’t want to wait for the legislation to become law, according to Nicholas Paolucci of the New York City Law Department.

“We believe suing Ballyhoo was the fastest way to stop the misconduct,” Paolucci told the Brooklyn Eagle.

Ballyhoo CEO Adam Shapiro asserts that his company is not breaking the law and that his boats have “overwhelmingly positive community support.”

“We look forward to either resolving these issues with city officials, or to the judicial determination affirming our right to continue our livelihoods,” Shapiro said. “Advertising along the city’s waterways is not [a] new activity, Ballyhoo just happens to be the newest.

“We love the waterways and have developed this platform to be an asset to the community.”

Paolucci confirmed with the Eagle that Ballyhoo has not yet been fined for its actions and that the city is now waiting for a judge to be assigned and for the briefing schedule.

Asked why the NYPD has not yet issued any summons, Paolucci reiterated that a lawsuit was the “most effective way” to stop the 1,200-square-foot advertising barge.

Politicians argue that the maximum fines, as they currently stand, pale in comparison to the profits earned by these companies and do nothing to deter the businesses from operating their floating ads.

“Pricing of a 30-second spot in a two-minute loop on the boats is $55,000 in NYC,” a spokesperson for Pivot Media Ventures, a Ballyhoo affiliate, told Digiday.

New York City’s laws prohibit “the display of an advertising sign on any vessel in a waterway adjacent to a residential, commercial, or manufacturing district and within view of an arterial highway.”

The boat and its 20-foot high, double-sided screen can be clearly seen from several roadways, including the BQE, Belt Parkway, FDR Drive and West Side Highway.

Ballyhoo’s marketing material explicitly advertises its reach to drivers on highways, and to pedestrians and cyclists along the water.

“In marketing its services,” the city’s lawsuit reads, “Ballyhoo claims that ‘86.7 million cars travel [the] FDR and the West Side Highway annually,’ that the average household net worth in New York City’s ‘waterfront communities’ is $1.2 million, and that the company’s barge billboards allow brands to reach ‘millions of pedestrians, walking, running, biking [and] commuting.’”

The vessel has been seen traveling down the Brooklyn waterfront on the East River from Greenpoint to Bay Ridge, as well as along the Hudson River.

Assuming that the barge has operated every day since the initial letter from the city was sent on Jan. 2, Ballyhoo would owe at least $2.1 million at $25,000 per day — money that could go toward the city’s crumbling subway system or those costly Gowanus Canal sewage tanks.

Follow reporter Scott Enman on Twitter.

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