PIZZA DI JOEY, LLC, ET AL.
MAYOR AND CITY COUNCIL OF BALTIMORE
Circuit Court for Baltimore City Case No. 24-C-16-002852
Nazarian, Friedman, Battaglia, Lynne A. (Senior Judge,
Specially Assigned), JJ.
is home to over a thousand brick-and-mortar restaurants and
about seventy licensed food trucks, including Pizza di Joey
and Madame BBQ (collectively "the Food Trucks").
Baltimore City Code, Article 15, § 17-33, known
colloquially as the "300-foot rule," prohibits
mobile food vendors from conducting business within 300 feet
of brick-and-mortar establishments that sell primarily the
same kind of food.
October 2016, the Food Trucks sued the City in the Circuit
Court for Baltimore City. They asked the court to declare
that the 300-foot rule functionally prohibited them from
operating in Baltimore City and, therefore, violated their
rights under Article 24 of the Maryland Declaration of
Rights. The City countered that the rule did not prevent food
trucks from thriving in Baltimore City and that the
rule's location restrictions furthered the City's
legitimate interest in supporting local brick-and-mortar
businesses that had invested in Baltimore's commercial
trial, the circuit court found (using what it called
"heightened rational basis review") that the
300-foot rule did not violate the Food Trucks' rights
under Article 24, but that the ambiguities in the statutory
language rendered it unconstitutionally vague. We hold that
the ordinance should have been measured for rational basis,
that it does not violate Article 24, and that it is not
unconstitutionally vague. We affirm the circuit court's
rulings on Article 24 and reverse the judgment enjoining the
City from enforcing the rule.
The 300-Foot Rule
Baltimore City Code regulates the places mobile food vendors
can operate. One restriction, known as the "300-foot
rule," has been around since the 1970s, but in its most
recent form, which took effect on February 28, 2015,
prohibits mobile vendors from operating within 300 feet of a
business that sells primarily the same food, merchandise, or
A mobile vendor may not park a vendor truck within 300 feet
of any retail business establishment that is primarily
engaged in selling the same type of food product, other
merchandise, or service as that offered by the mobile vendor.
Baltimore City Code, Art. 15, § 17-33.
truck that violates the 300-foot rule commits a misdemeanor.
Baltimore City Code, Article 15, § 17-42. Violators must
pay a fine of $500, id., and may also have their
mobile vending licenses suspended or revoked. Baltimore City
Code, Art. 15 § 17-44(a). If a licensee commits three
violations within a one-year period, revocation is mandatory.
Baltimore City Code Art. 15 § 17-44(b). And once a
mobile vendor's license has been revoked, "the
former licensee may not apply for a new license until at
least 1 year from the date of revocation." Baltimore
City Code, Art. 15, § 17-44(c).
number of City agencies, including the Department of
Transportation, the Department of General Services, the
Baltimore City Police Department, and the University of
Maryland Police, enforce the 300-foot rule. Aside from the
text of the rule itself, no guidelines elaborate on how the
rule should be enforced or define the phrases "primarily
engaged in" or "same type of food product"
with any further precision.
these penalties have been on the books since 2015, no vendor
has received a citation or had a license suspended for
violating the 300-foot rule. Instead, when mobile vendors
violate the rule, the City's enforcement authorities ask
them to relocate or to alter their menus according to what
brick-and-mortar establishments are nearby. Enforcement
authorities initiate these measures only in response to a
complaint that a food truck is parked too close to a
The Food Trucks
di Joey is a Maryland-based limited liability company and a
mobile vendor licensed in Baltimore City. See
Baltimore City Code, Art. 15, § 17-1. Pizza di Joey is
an Italian kitchen on wheels, complete with 4000-pound brick
pizza oven, and has sold "authentic New York style brick
oven pizza, as well as some Italian pastas and salad"
since 2014. The "Joey" of Pizza di Joey is its
owner and founder, Joseph Salek-Nejad, known professionally
as Joey Vanoni. Pizza di Joey is open for business several
afternoons per week. Although Mr. Vanoni had intended his
"center for business operation" to be Baltimore
City, he now operates in Anne Arundel County the vast
majority of the time, purportedly as a result of the
prohibitive nature of the 300-foot rule.
di Joey has never been cited for violating the 300-foot rule,
but was approached once by law enforcement in 2015 in
response to a brick-and-mortar restaurant's complaint.
Pizza di Joey was setting up for lunch service on the 800
block of West Baltimore Street when a University of Maryland
Police officer approached and told Mr. Vanoni that a nearby
deli had complained that he was parked too close. Mr. Vanoni
explained to the officer that because the deli did not serve
pizza, he understood that he was permitted to park his truck
nearby without violating the 300-foot rule. The officer was
not familiar with the particulars of the rule, so Mr. Vanoni
pulled up the text of § 17-33 on his laptop and showed
it to him. The officer agreed after reviewing the rule that
there was no violation and went on his way. Beyond selling
the same officer a slice of pizza later that day, that one
encounter represented all of Pizza di Joey's interactions
with enforcement authorities relating to the 300-foot rule.
BBQ is a Maryland-based limited liability company founded in
the summer of 2014. In 2016, Madame BBQ rebranded its food
truck as MindGrub Café and shifted from selling
barbeque to more health-conscious cuisine, self-described as
"brain food for knowledge workers." Madame BBQ is
owned by Nicole McGowan, who has worked in the food service
industry since she was fifteen. When Ms. McGowan began
operating Madame BBQ in 2014, she conducted most of her
business in Howard County. At that time, she was not a
licensed mobile vendor in Baltimore City and only took her
truck there occasionally through one-day permits for block
parties and special events. At the time of trial, Ms. McGowan
was in the process of relocating "the focus of [her]
operations" to Baltimore City, where she would ideally
like to sell lunch from her truck on weekday afternoons. She
is now licensed in Baltimore City.
BBQ has never been cited for violating the 300-foot rule and
has never had any encounter with enforcement agencies. But
the rule is so prohibitive, Ms. McGowan claims, that she does
not take her truck out in Baltimore City because there is
nowhere she feels she can serve lunch that doesn't
"make [her] afraid to get a citation or lose [her]
di Joey and Madame BBQ filed this action in the Circuit Court
for Baltimore City on May 11, 2016. They alleged that the
300-foot rule violated their rights to equal protection and
due process under Article 24 of the Maryland Declaration of
Rights, both on its face and as applied. The Food Trucks
sought a declaratory judgment stating the 300-foot rule was
unconstitutional and a permanent injunction against its
enforcement. The City filed a Motion to Dismiss the
complaint, which was denied. The parties' cross-motions
for summary judgment were also denied and the case was set
trial lasted two days and included testimony from Mr. Vanoni,
Ms. McGowan, and Anirban Basu, an expert witness offered by
the City who testified about the impact of food trucks on
brick-and-mortar businesses and the economic viability of
commercial neighborhoods. The Food Trucks' owners'
depositions also were admitted into evidence, along with the
depositions of two City employees deposed as its
representatives-Gia Montgomery of the Department of
Transportation, who testified that she was the person most
qualified to speak authoritatively on mobile vending
licensure and regulation enforcement, and Babila Lima of the
Department of General Services ("DGS"), who drafted
both the 300-foot rule and the materials posted to the DGS
website offering guidance on the mechanics of mobile vending
Mr. Vanoni testified that the 300-foot rule has essentially
driven him out of Baltimore City, contrary to his original
intention to make Baltimore the center of his business. He
explained that the rule is "extremely limiting on my
business' ability to successfully operate. . . . I've
been compelled to operate outside the City which is not what
I intended. I'd like to operate [in Baltimore]." He
claimed that the 300-foot rule prohibited him from operating
in the Baltimore neighborhoods where his business was most
likely to succeed, such as Hampden:
MR. VANONI: It's a great area. It's [an] up and
coming neighborhood here in Baltimore. I've got some
friends that live up there. They bought some homes there and
it's kind of like a culinary incubator. . . . It's
upbeat. It's fun. And it's a cool place to hang out.
PIZZA DI JOEY'S COUNSEL: What steps did you take to
analyze the effect of the 300-foot rule and your ability to
operate in the Hampden area?
MR. VANONI: I got a list of all the restaurants in the area
and I took evaluation of their menus and compared their menus
trying to look for any conflicts with regards to this
300-foot rule. Then I shortened my list, went to Hampden and
walked the streets verifying their locations with a map I had
and the list I created.
PIZZA DI JOEY'S COUNSEL: And about how many restaurants
did you identify that concerned you?
MR. VANONI: Hampden, it was 12.
PIZZA DI JOEY'S COUNSEL: And in identifying those 12 what
conclusions did you draw about your ability to operate in
MR. VANONI: I couldn't operate there successfully.
addition to Hampden, Mr. Vanoni expressed concern about
taking his truck to Federal Hill, Harbor East, Canton, and
Vanoni also testified about his encounter with the University
of Maryland Police, and explained that it caused him to
reevaluate and ultimately change his business plan:
PIZZA DI JOEY'S COUNSEL: What were the lessons you drew
from your experience with the University of Maryland police
MR. VANONI: That this law's enforced, that on any given
day I could be approached and, you know, I don't want to
sound like I'm so important, but I operate my business
and I'm on the truck. So when somebody's occupying my
time I can't prep. It gave me great pause and concern for
operating because I can go here and, you know, even though I
could be completely in the right I have to sit here and argue
my case every day with an enforcement officer whatever
uniform they're wearing or out of uniform and that takes
up time from operating. I start off the day normally by
myself until my staff arrives, so it's kind of precious
PIZZA DI JOEY'S COUNSEL: Were you more concerned about
the 300-foot rule after this incident?
MR. VANONI: Absolutely. I realized it wasn't[, ] not that
I took it lightly[, ] but it definitely wasn't a law to
take lightly or an order to take lightly not that I really do
take laws lightly, but I realize that it was enforced and
kind of like, you know, just kind of reiterating what I said
before on any given day I could go out there and try to
operate and potentially be approached by somebody who is
trying to just call on a complaint. They're doing their
job. I get that. I'm not in the habit of, you know,
getting into argument with law enforcement officers. So yeah,
it definitely raised my level of concern.
McGowan expressed similar concerns in her testimony. She said
that the 300- foot rule placed entire neighborhoods off
limits to MindGrub Cafe, particularly Federal Hill, Hampden,
Harbor East, Downtown, Locust Point, and Woodberry. She also
shared Mr. Vanoni's concerns about profits she lost as
result of time spent justifying her truck's presence to
MADAME BBQ'S COUNSEL: [D]oes your concern about the 300
foot rule influence where you decide to set up?
MS. MCGOWAN: Yes, it does.
MADAME BBQ'S COUNSEL: How so?
MS. MCGOWAN: I definitely don't take my truck out very
often, because I'm fearful of where I can park. I
haven't found any places that are not--that don't
make me afraid to get a citation or lose my license.
[A]s we heard from Joey, you know, all of this takes time.
And to try to have to, you know, prove your case, you know,
whenever you go out, and the fear of having to prove your
case - you know, if someone comes up and says, "[y]ou
need to prove you are not in violation." That all takes
time. I mean, lunch service is not very long.
City's expert, Anirban Basu, testified at length about
the problems food trucks present to brick-and-mortar eateries
and how the 300-foot rule might address those concerns. Mr.
Basu is CEO of an economic and policy consultancy that has
represented many Baltimore businesses, developers, and
agencies. He co-authored an economic development strategy for
Baltimore City, and was consultant for the developers of
Harbor East, Harbor Point, and Port Covington. Mr. Basu