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Food truck owners argue Baltimore rule unfairly restricts businesses
Daily Record Legal Affairs Writer//September 28, 2017
Food truck owners argue Baltimore rule unfairly restricts businesses
Two Baltimore-area food truck owners testified Thursday how a city ordinance preventing them from operating too close to restaurants selling the same food has hindered their businesses.
Joey Vanoni of Pizza di Joey and Nikki McGowan of Mindgrub Cafe, have argued the so-called “300-foot rule” for mobile vendors has effectively barred them from doing business in entire neighborhoods, and compliance is onerous.
The proximity ban makes it “very prohibitive” to operate in the city, Vanoni testified in Baltimore City Circuit Court, and it is time-consuming to ensure he is not in violation because he has to locate every restaurant in a neighborhood and review their menus.
“I’m a small business,” he said. “I’m just a guy trying to push bread, tomatoes and cheese out a window.”
McGowan, whose Madame BBQ food truck began operating in 2014 before rebranding as Mindgrub Cafe with sandwiches, salads and soups, said her menu is so extensive almost any restaurant can be deemed to have the “same or similar” food.
In the Hampden neighborhood, McGowan testified at least 35 or 40 establishments have menu items that overlap with hers.
“My menu is so broad that I pretty much hit every restaurant on 36th Street,” she said.
The two owners are asking Judge Karen C. Friedman to find the ordinance unconstitutional following the two-day bench trial.
Robert Frommer, an attorney for the plaintiffs, said in opening statements Thursday the rule is “a major impediment to Joey and Nikki’s dreams” and its express purpose is to benefit restaurants, leaving vendors guessing as to how it will be enforced.
Frommer, of the Institute for Justice, reiterated his argument the rule is economic protectionism with no rational basis.
Mark Dimenna, an assistant city solicitor, said the plaintiffs have not shown the rule has hurt them because neither has been cited for a violation, proved their businesses have suffered and nor shown the rule was arbitrary.
Vanoni began operating in August 2014 and sells brick-oven pizzas and other Italian-American cuisine in Baltimore and Anne Arundel County. After a 2015 run-in with a University of Maryland police officer who responded to a complaint about where Vanoni was set up, he said he scaled back his operations in the city. The officer did not issue a citation after Vanoni showed him the rule and explained it, but the food truck owner said if that were to be a frequent occurrence it would take away from his time to work.
McGowan pointed to the two breweries that have food truck vendors in the Hampden area where she could operate if a barbecue restaurant were not within 300 feet.
Other restrictions
As Vanoni testified about how he ensures he is in compliance and how the rule has changed his behavior, Dimenna cross-examined him about other restrictions besides the proximity ban that would make operating difficult, including metered parking and residential areas.
Vanoni said he cannot operate effectively in Hampden because of the restaurants along the main commercial roads that sell the same cuisine he does. But Dimenna pointed out the metered parking would limit his parking to two hours — not enough time to set up and operate — and angled parking on those roads would also restrict his ability to sell.
Dimenna also questioned Vanoni’s interpretation of what restaurants sell the same cuisine he does. Vanoni included businesses such as Subway because it sells meatball subs and personal pizzas but Dimenna disputed whether those were their “primary” products, as the rule requires.
Economist Anirban Basu is expected to testify as Friday morning as the city’s only witness. The plaintiffs moved to exclude Basu because they said his testimony will consist of legal opinions and he did not conduct a formal analysis to conclude the city’s rule is rational. Friedman denied the motion and said the plaintiffs could cross-examine Basu on his methods.
The case is Pizza di Joey LLC et al. v. Mayor and City Council of Baltimore, 24C16002852.
Plaintiffs’ exhibits showing how the city rule affects food trucks in different Baltimore neighborhoods:
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