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City, food truck owners debate constitutionality of proximity ban on appeal

ANNAPOLIS — Attorneys for Baltimore on Tuesday asked an appellate panel to allow the enforcement of a city ban on food trucks operating too close to businesses selling the same food, arguing that a trial judge should not have found the law overly vague.

The “300-foot rule” prohibits mobile vendors from setting up shop within 300 feet of a brick-and-mortar establishment primarily engaged in selling similar products. The city has not been able to enforce the ban for more than a year after a Baltimore City Circuit Court judge held it was unconstitutionally vague.

The Institute for Justice filed suit on behalf of two food truck owners in 2016, arguing the ban was unconstitutional on its face because the city was treating food trucks and restaurants differently. The truck owners claimed they were unable to operate in large sections of the city because of the ban.

The trial judge enjoined the city from enforcing the law in 2017. Food trucks have been able to operate freely since then, but the plaintiffs appealed because they say the notion of a “proximity ban” is unconstitutional.

City Solicitor Andre M. Davis, who told the Court of Special Appeals Tuesday that the Institute for Justice had “swoop(ed) into Baltimore” to attack economic regulation, said there was nothing wrong with preventing food trucks from siphoning customers away from restaurants that have invested in property and generate revenue in the city.

Calling the case “an academic exercise,” Davis told the court the case should have been thrown out before it came to trial because the plaintiff food trucks had not received citations or experienced any harm.

Baltimore City Circuit Judge Karen C. Friedman found that the city’s stated purpose of protecting and promoting the investment of permanent restaurants was a legitimate purpose for the law but held the law was unconstitutionally vague, citing testimony from city officials and plaintiffs Joey Vanoni of Pizza di Joey and Nikki McGowan of Mindgrub Cafe about differing interpretations of the law’s language.

The plaintiffs did not make the vagueness argument in their case, Court of Special Appeals Judge Daniel A. Friedman pointed out, and plaintiffs’ attorney Robert Frommer expressly disclaimed a “void for vagueness” claim when questioned by the trial court. Judge Karen Friedman chose to find the law unconstitutionally vague on her own.

Judge Daniel Friedman said the court had to determine if the vagueness challenge on appeal is to the law on its face or to the law as it was applied to the plaintiffs, which he said would guide the court’s analysis but was difficult to determine because the plaintiffs did not make a vagueness claim.

Frommer said the law is void on its face because his clients and multiple city officials offered different interpretations, but Judge Douglas R.M. Nazarian questioned if that was enough to make the ban unconstitutionally vague.

The plaintiffs cited examples of confusion, with Vanoni saying he was unsure if he could operate near a Subway restaurant because Subway sells pizzas and meatball subs. Nazarian said that in many cases the facts would be much clearer and that “issues around the edges” could be sorted out in court.

“It means courts get to sort it out,” he said. “Administrative agencies get to sort it out. The law sorts it out.”

Retired Judge Lynne A. Battaglia also sat on the Court of Special Appeals panel.

After the hearing, Frommer said food trucks have been operating without the law for more than a year and the city did not argue that businesses have been harmed.

“All their dire predictions just haven’t happened,” he said.

Vanoni said he has been “warmly welcomed” in areas of Baltimore that were off-limits under the ban. While he said he does not seek to compete with specific pizza restaurants, he said he is now free of the “considerable” worry of attempting to comply with the law.

The case is Pizza di Joey LLC et al. v. Mayor and City Council of Baltimore, No. 2411 Sept. 2017.

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