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Pizza Di Joey, LLC v. Mayor and City Council of Baltimore

Court of Special Appeals of Maryland

May 30, 2019

PIZZA DI JOEY, LLC, ET AL.
v.
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.

          OPINION

          Nazarian, J.

         Baltimore 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.

         In 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 neighborhoods.

         After a 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.

         I. BACKGROUND

         A. The 300-Foot Rule

         The 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[1] from operating within 300 feet of a business that sells primarily the same food, merchandise, or service:

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.[2]

         A food 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).

         A 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.[3] 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.

         Although 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 brick-and-mortar business.

         B. The Food Trucks

         Pizza 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.[4] 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.

         Pizza 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.

         Madame 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.

         Madame 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] license."

         C. The Lawsuit

         Pizza 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 for trial.

         The 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 regulations.

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 Hampden?
MR. VANONI: I couldn't operate there successfully.

         In addition to Hampden, Mr. Vanoni expressed concern about taking his truck to Federal Hill, Harbor East, Canton, and Fells Point.

         Mr. 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 officer?
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 time.
***
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.

         Ms. 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 law enforcement:

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.

         The 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 ...


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