Baltimore City Food Truck Ordinance is Constitutional

Image of food truck. Image by Peter Burnham

The article is not a substitute for legal advice. 

            Over the past few years, a revolution in the food service industry has developed with the increased popularity of food trucks.  Although many may love to get their daily lunch from food trucks, these vehicles have raised some concerns among 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 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 vagueness issues.  The City appealed, and the Maryland Court of Special Appeals recently ruled that the ordinance is not illegal, reversing the circuit court.  The Maryland Court of Appeals has agreed to hear the case on appeal, possibly putting an end to litigation involving the ordinance.

Challenges Brought by Food Truck Owners

            The food truck owners challenged the 300-foot restrictions based on violations of Maryland’s Declaration of Rights, claiming the restrictions violated their 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, limiting the power of courts to only hear claims with 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 the ordinance had never been enforced against the food truck owners and claimed the ordinance was unconstitutional, the ordinance was not ripe.  The court disagreed with this argument, highlighting that the City would not enforce the 300-foot rule and had never allowed 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 court found that 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.  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 which 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.

Food truck in Baltimore City. Image by Baltamour Carla

            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 preventing retired judges from practicing law for profit.  The 300-foot ordinance did not prevent the food truck owners from being vendors in Baltimore City only where they could operate their food trucks.  The court found the second case cited did not apply for that reason.

            The 300-foot ordinance was rationally related to a legitimate government purpose.  The ordinance addressed issues which 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 relationship between the law and what is being regulated.  

            Finally, the court disagreed with the circuit court that the ordinance was void for vagueness.  The food truck had never included a 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 cannot.  In this case, testimony from community development experts on the impact of closed restaurant areas showed how closed restaurants could hamper attempts to revitalize neighborhoods of Baltimore City.  If people see closed businesses, it may stop them from opening a business there 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 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).

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