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Baltimore city, food truck owners debate constitutionality of proximity ban

The Pizza di Joey food truck. (File photo)

The Pizza di Joey food truck. (File photo)

A Baltimore City Circuit Court judge will have another chance to end a lawsuit over the city’s “300-foot rule” for food trucks after hearing motions for summary judgment Wednesday.

The lawsuit claims the rule, which prevents mobile vendors like food trucks from operating within 300 feet of a brick-and-mortar business that sells the same food, merchandise or service, is “unconstitutional economic protectionism.” The parties each filed motions for summary judgment last month.

The operators of Pizza di Joey and Madame BBQ, who filed the lawsuit last May, argue the rule discourages competition and effectively blocks them from operating in large areas of the city as well as being “arbitrarily interpreted and enforced,” according to court records.

But a lawyer for the city argued Wednesday that the City Council was within its rights to confer an economic benefit as long as the regulation was not irrational, and the plaintiffs have not provided evidence that shows promoting the economic vitality of commercial districts is an invalid goal.

“The 300-foot rule is a minimal barrier to entry into the mobile vending marketplace,” Mark Dimenna, an assistant city solicitor, told Judge Yolanda A. Tanner.

Dimenna also argued the two food truck owners have not shown they have been harmed by the rule because neither have received a citation nor provided evidence that they changed their behavior or have lost business.

“What is before the court is postulation and speculation,” he said.

Gregory Reed, a lawyer for the plaintiffs, said the rule is not a minimal barrier but has effectively prohibited his clients from operating in entire neighborhoods. The city has not denied that the rule is intended to limit the competition faced by restaurants, which makes it “per se illegitimate,” and the proposed legitimate interest in promoting economic stability is just hypothetical benefits that may flow from the rule, said Reed, of the Virginia-based Institute for Justice.

“The Maryland Court of Appeals for nearly the last 100 years has repeatedly struck down rules just like the 300-foot rule,” he said.

Baltimore City Circuit Judge Cynthia Jones previously denied the city’s motion to dismiss the case in September, finding the plaintiffs had plausibly stated a claim for relief on equal protection and substantive due process grounds under the Maryland Constitution.

Tanner said she will issue a ruling on the parties’ motions in time for them to prepare for a pretrial conference Aug. 18, if necessary.

The parties also briefly argued a motion to exclude an expert economist designated by the city who plaintiffs’ attorney Robert Frommer said made legal conclusions rather than providing analysis.

Dimenna said the economist is being offered to show the benefits of the rule and why the City Council would have passed it, but Frommer said Anirban Basu concludes the council had a rational basis for the rule, which is a legal question.

Tanner said she would also take the expert witness issue under advisement.

The case is Pizza di Joey LLC et al. v. Mayor and City Council of Baltimore, 24C16002852.

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