• Paul Goeringer

Baltimore City Food Truck Ordinance is Constitutional

Updated: Jul 13


Baltimore food truck and image is by baltamour carla.

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Over the past few years, a food revolution has developed with food trucks. Although many may love to get their daily lunch from food trucks, food trucks have caused some concerns with many brick-and-mortar restaurant owners. Baltimore City imposed restrictions on food trucks limiting them from operating within 300 feet of any retail business establishment that is primarily engaged in selling the same type of food product, other merchandise, or services (Art. 15 § 17-33). Food truck operators challenged this law in circuit court, and the ordinance was found unconstitutional for being vagueness issues. The City appealed, and the Maryland Court of Special Appeals recently ruled that the ordinance is not illegal and reversed the circuit court. The Maryland Court of Appeals has agreed to hear the case on appeal, possibly putting an end to the litigation involving the ordinance.


Challenges Brought by Food Truck Owners

Image is by baltamour carla

The food truck owners challenged the 300-foot restrictions based on violations of Maryland’s Declaration of Rights. The food truck owners claimed the restrictions violated the owners’ rights to due process and equal protection under the law.


Court of Special Appeals Decision


First, the court rejects claims from the Mayor and City Council that the challenge by the food trucks was not ripe for judicial review. Ripeness is a doctrine like standing, discussed here, that limits the power of courts to only hear claims that have an injured party. Ripeness prevents courts from hearing cases in a vacuum without an actual dispute. In this case, the Mayor and City Council argued that because the ordinance had never been enforced against the food truck owners and claimed the ordinance is unconstitutional are not ripe. The court disagreed with this argument, highlighting that the City would not enforce the 300-foot rule and would never allow the food truck owners to challenge the law. The court found that because the ordinance impacted the food truck owners’ business interest and potential rights under the state constitution the claims were ripe for review.


The 300-foot ordinance is a valid constitutional exercise of the city’s police power. The food truck owners tried to argue that the ordinance is anti-competitive and economic favoritism, but could cite no cases where laws had been struck down based on these arguments. The court agreed with the circuit court that the ordinance was not unconstitutional per se.


Next, the court turned to the proper level of scrutiny to apply to the ordinance. In claims involving fundamental rights, such as race, religion, or national origin, require a court to use a strict scrutiny test. In cases such as this one that does not involve a fundamental right, the court uses a rational basis test. The ordinance must have a legitimate state interest, and the ordinance’s means and goals must be rationally connected, to comply with the rational basis test. The court disagreed with the circuit court that the ordinance needed to pass a higher level of scrutiny.


The court disagreed that the cases cited by the food truck owners did not show the ordinance failed the rational basis test. In one case, a county ordinance required tow truck drivers to reside in the county to obtain a license to operate in the county. The court highlighted that nothing in the 300-foot ordinance needed the food truck owners to be residents of Baltimore City to operate. The second case involved a statute that prevented retired judges from practicing law for profit. The 300-foot ordinance did not prevent the food truck owners from their ability to be venders in Baltimore City only where they could operate their businesses.


Image by A.Currell

The 300-foot ordinance was rationally related to a legitimate government purpose. The ordinance addressed issues that can arise when food trucks can set up within a block (300-feet) of a traditional restaurant. The City had presented testimony to show what can happen if food trucks drive traditional restaurants out of business, to demonstrate a rational relation.


Finally, the court disagreed with the circuit court that the ordinance was void for vagueness. The food truck had never included an initial vagueness challenge in their initial complaint. The circuit court appeared to pick up on this argument from food truck owners’ closing arguments. The court invalidated the 300-foot ordinance on a claim that the food truck owners never raised initially. The court reversed the void for vagueness decision by the circuit court.


Why Does This Matter?


The decision highlights that local jurisdictions do have greater leeway than initially thought to limit where food trucks can operate. Food trucks can move quickly to popular areas to sell, but traditional brick-and-mortar restaurants can not. In this case, there was testimony from community development experts on the impact of closed restaurant areas and how closed restaurants could hamper attempts to revitalize neighborhoods of Baltimore City. People see closed businesses, and it may stop them from opening a business in the area or moving to the area.


This decision is not the last word on this case. The Court of Appeals has agreed to hear an appeal from the food truck owners. We will have to wait till later in 2020 to determine what the outcome of this case will be.


References


Pizza Di Joey, LLC. v. Mayor of Baltimore, 209 A.3d 184 (Md. Ct. Spec. App. 2019).


#BaltimoreCity #ALEI #constitutionallaw #equalprotection #foodtruck

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