Judge: Baltimore food truck restrictions too vague to enforce

A Baltimore judge ruled Wednesday that the city’s proximity ban on mobile vendors is unconstitutionally vague and cannot be enforced.

Two food truck owners sued in Baltimore City Circuit Court last year alleging the 300-foot rule, which prevents them from operating near a restaurant selling the same cuisine, violated the Maryland Declaration of rights by effectively barring them from operating in entire neighborhoods.

Joey Vanoni of Pizza di Joey and Nikki McGowan of Mindgrub Cafe testified at a bench trial in September that the ban was very prohibitive to their operation and that compliance was onerous.

Judge Karen C. Friedman ruled Wednesday that “the terms of the ordinance are so vague that fair notice is not provided and enforcement is likely to be subjective and arbitrary until the ordinance has been clarified by amendments.”

Friedman stayed enforcement of her injunction for 60 days.

City Solicitor Andre Davis said Wednesday afternoon that he has not yet reviewed the ruling.

“Since day one, it has been clear that the 300-foot ban has completely left Baltimore’s food trucks in the lurch,” Institute for Justice attorney Greg Reed said in a prepared statement. “The judge gave the city 60 days to stop enforcing the law, which means food trucks will soon no longer have to live in fear of criminal prosecution.”

In her opinion, Friedman determined that a reasonable person cannot reliably interpret when a mobile vendor is “primarily engaged in selling” a product that would prohibit them from being near a brick-and-mortar business. She similarly held that the “same type of food product” was not adequately defined.

Vanoni testified that he does not operate near Subway restaurants because they sell pizzas and meatball subs and he is not sure if he would be in compliance. McGowan testified that she compares her menu item by item to nearby restaurants and is often in doubt about what the same type of food means for her.

Friedman also said the rule does not clearly explain how the 300-foot distance is measured and no uniform standard emerged from the four entities with authority to enforce it. She directed that the measurement be taken from the closest point of the space in a building housing the restaurant in question to the closest point of the food truck.

The Institute for Justice teamed up with the plaintiffs to bring the suit and Wednesday announced an intention to appeal the ruling, which does not find that treating food trucks differently than restaurants is unconstitutional, which they argued.

Friedman held that distinguishing between food trucks and restaurants is not a per se unconstitutional discriminatory classification and did not violate the plaintiffs’ equal protection rights. The city’s stated purpose for the rule is to protect the contributions of brick-and-mortar establishments, promote investment by eliminating the potential risk of food trucks, and diversify the marketplace.

“The Court agrees that the vitality of commercial districts is dependent upon the success of brick-and-mortar establishments, which promotes a successful economy,” Friedman wrote. “The 300-foot rule serves the legitimate purpose of promoting the City’s general welfare by establishing a 300-foot distance between brick-and-mortar establishments and mobile vendors. The City is entitled to protect the general welfare by ensuring the vibrancy of commercial districts.”

Institute for Justice attorney Robert Frommer said the ruling brings Baltimore “one step closer to food truck freedom,” but he added that “until the Maryland courts declare once and for all that cities cannot make it a crime to compete, we will keep fighting.”

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