Baltimore City Restrictions on Food Trucks Unconstitutional for Vagueness

 

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Food trucks in San Francisco.  Image by Todd Lappin

 

The article is not a substitute for legal advice.

Many of you may not live in areas with access to food trucks, but in areas where there are food trucks there can be disputes between traditional brick and mortar restaurants and the food trucks. Recently, Baltimore City imposed restrictions on food trucks that limited food trucks 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 as that offered by the food truck operator (Art. 15 § 17-33). Food truck operators challenged this law in circuit court and the law recently found to be void for vagueness and 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 to be a due process clause and equal protection clause similar to those found in the U.S. Constitution.

Before we discuss the court’s analysis, we will 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 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 that has been deemed to be 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 that does not impact suspect criteria or a fundamental right. The rational basis test requires the challenged law must 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, but at the same time wanting to offer more protection to a right than rational basis might provide. Heightened rational basis requires the statute serve an important government objective and must substantially relate to the achievement of that objective.

In this case, the court utilizes the heightened rational basis test to review the 300-foot ordinance. What the city points out to the law is to promote 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 argue that the ordinance is protectionism and that is not a legitimate interest.

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Image of food truck.  Image by Patrick Giblin 

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. This pulling away customers could harm areas with the restaurants from a lack of commercial activity and have an impact on 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 made by brick-and-mortar restaurants, promoted investment, and diversifies the marketplace. This demonstrated that the ordinance was not without protectionism and did substantially relate 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. A law, to be constitutional, is required to 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:

  1. the statute must satisfy fair notice, and
  2. the statute must provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation is it to enforce, apply and administer penal

The fair notice allows a person of ordinary intelligence and experience to have 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

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Food truck image by Thomas Duesing

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 individual is 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.

Why Care?

Restrictions on food trucks have been a new area of the law that has popped up as food trucks have become a more popular dining alternative. But the reason to highlight this case is for the reasons that it demonstrates a law needs to be clear about what is prohibited. The ordinance here, although 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 that the court found with this ordinance. The city may also decide to appeal this ruling. This case is a case we will have to follow to see how it will turn out in the long run.

References

Pizza Di Joey, LLC. v. Mayor of Baltimore, No. 24-C-16-002852 (Cir. Ct. Dec. 20, 2017).

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