Baltimore City Restrictions on Food Trucks Unconstitutional for Vagueness
Updated: Nov 11, 2020
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While you may not live in an area with access to food trucks, in areas where there are food trucks there can be disputes between traditional brick and mortar restaurants and such trucks. Recently, 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 law was recently found void for vagueness; the court also rejected arguments that the law violated Maryland Declaration of Rights protections of due process and equal protection.
Challenges Brought by Food Truck Owners
The food truck owners challenged the 300-foot restrictions based on violations of Maryland’s Declaration of Rights. The first challenge was that the restrictions violated the owners’ rights to due process and equal protection under the law. The second challenge was that the 300-foot restrictions were void for vagueness.
Due Process and Equal Protection Challenges
Article 24 of the Maryland Declaration of Rights states that “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” The Maryland courts have found this provision the equivalent of a due process clause and equal protection clause similar to those found in the U.S. Constitution.
Before we discuss the court’s analysis, let’s first cover what due process is and what equal protection is. Due process is a safeguard that individuals will not be denied access to life, liberty, and property by the government without a fair judicial process. Equal protection requires that the government must provide equal protection under the law to all individuals.
Both clauses have three different standards of review that a court could potentially use in reviewing a law. The first standard is strict scrutiny. Courts use strict scrutiny when the law in question creates a distinction based upon suspect criteria (such as race) or impacts a personal right deemed a fundamental right (such as marriage, privacy, and having children). The second standard is called the rational basis test and is the standard used for everything which does not impact suspect criteria or a fundamental right. The rational basis test requires the challenged law to have a rational relationship to a legitimate state interest.
The third standard is a heightened rational basis test. This third standard was developed because of courts not wanting to expand rights classified as fundamental rights, while at the same time wanting to offer more protection to a right than rational basis might provide. Heightened rational basis requires that the statute serve an important government objective and must substantially relate to the achievement of that objective.
In this case, the court utilized the heightened rational basis test to review the 300-foot ordinance. For the important government objective that the general welfare of Baltimore City by preventing vacant properties, generating revenue through taxes for the city, providing jobs, and promoting real estate investments. The food truck owners argued that the ordinance is protectionism, which is not a legitimate interest.
The city had shown with expert testimony that brick and mortar restaurant naturally engage in competition and that food trucks threaten that competition by pulling away customers — which could harm areas with restaurants through a lack of commercial activity and impact the economy of Baltimore City.
The 300-feet ordinance was constitutional, applying the heightened rational basis test. To this court, the ordinance protected the contributions of brick-and-mortar restaurants, promoted investment, and diversified the marketplace, demonstrating that the ordinance did provide protectionism and substantially related to achieving those objectives.
Void for Vagueness
Although the ordinance did not violate due process or equal protection, the court next turned to the argument the law was void for vagueness. The food truck owners argued the 300-foot ordinance was undefined and ambiguous. To be constitutional, a law must inform people falling under it as to what is exactly illegal. If a law is unclear, people will be unable to determine if they are subject to the law or even how they could be in trouble for violating the law.
Courts have developed a test to determine if a statute is unconstitutional for vagueness. The test has two factors:
the statute must satisfy fair notice, and
the statute must provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact, and others who enforce, apply, and administer penal laws.
The fair notice gives a person of ordinary intelligence and experience a reasonable opportunity to understand what is prohibited and modify behavior according to the new law. Fixed standards and adequate guidelines mean that the law does not give the government too much discretion in determining the law’s application.
The ordinance limited food truck owners 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 like that offered by the” food truck owners. To the court, the language “primarily engaged in” was not something a reasonable person could easily interpret. The court highlighted testimony from food truck owners to demonstrate how unclear this language was. One food truck owner who sold pizzas and occasionally added meatball subs on the menu was unsure if this ordinance meant the food truck could not be parked within 300 feet of a Subway store because Subway also sells meatball subs.
“Same type of food product” was also not clear, according to the court. Testimony from food truck owners demonstrated that multiple interpretations existed. The law requires that individuals be given a reasonable opportunity to know what is illegal. The 300-foot measurement was also not clear. Multiple governmental units had differing ways to determine this measurement and had not created a uniform method of measuring. Based on all this, the court ruled that the law was unconstitutional for vagueness.
Restrictions on food trucks have been a new area of the law which has popped up as food trucks have become a more popular dining alternative. But the reason to highlight this case is that it demonstrates a law needs to be clear in what is prohibited. The ordinance here, although it did not violate one set of constitutional principles, did violate others.
The Baltimore City Council could go back to the drawing board to clarify the vagueness issues the court found with this ordinance. The city may also decide to appeal this ruling. We will have to follow this case to see how it will turn out in the long run.
Pizza Di Joey, LLC. v. Mayor of Baltimore, No. 24-C-16-002852 (Cir. Ct. Dec. 20, 2017).