Appellate court reinstates Baltimore ‘300-foot rule’ for food trucks

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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.

But the state’s intermediate appellate court ruled the ban was a constitutional use of the city’s police power and a “classic economic regulation” with an “entirely rational basis,” in a reported opinion written by Judge Douglas R.M. Nazarian.

Attorneys for the plaintiffs, two food truck owners who claimed the law was significantly limiting where they could operate in the city and confusing both to them and enforcement officers, said Friday that they will petition for review in the Court of Appeals.

“It’s a disappointing decision,” attorney Robert Frommer said Friday. “It breaks with decades of Maryland precedent that has repeatedly said that the government can’t use its power to stifle one person for the benefit of another.”

Frommer said the court has “repeatedly struck down anti-competitive ordinances” and said the rule infringed on individuals’ right to earn a living. He also said that Baltimore needs small businesses like food truck owners and that they will think twice about operating in the city with regulations such as the 300-foot rule.

City Solicitor Andre M. Davis praised the opinion Friday and said that though the city plans to resume enforcement once the court issues its mandate, he does not want to discourage food trucks from coming to Baltimore.

“We will be meeting with the enforcement agents … to make sure they take a gentle hand once enforcement resumes,” he said. “The last thing we want to do is scare off small-business people from the city; we want as many as we can get.”

The food truck operators claimed the rule was “a baseless and discriminatory restriction on mobile vendors” that keeps them from operating in some of the most desirable neighborhoods, according to the opinion.

The trial judge determined the rule was too vague to enforce because an average person would not be able to understand phrases such as “primarily engaged in” and “same type of food product.” She also determined there was a lack of clarity about how to measure the 300 feet.

Though the food trucks did not make a vagueness argument in their pleadings, the argument came up in depositions and at trial and became the basis for the judge’s ruling, according to the opinion.

But absent any evidence of enforcement of the rule — no one had been cited as of the trial — the court cannot find it vague because Maryland courts entertain only facial vagueness challenges when fundamental rights are implicated, according to the opinion.

Though there may be questions about enforcement, such as whether a hot dog truck can sell near a brick-and-mortar deli, those questions don’t need to be answered ahead of time to avoid being vague, according to the opinion.

“The City could reduce the possibility of confusion or vagueness by promulgating regulations or providing guidance about how it plans to enforce the rule — perhaps by adopting the Cube Rule of Food Identification or some other set of guidelines,” Nazarian wrote. “But even without a formal food taxonomy in hand, City enforcement authorities are allowed to exercise reasonable discretion in applying the 300-foot rule.”

The Cube Rule identifies food “by the location of the structural starch,” Nazarian explains in a footnote.

Discrimination

The food trucks had also argued that the rule was unconstitutionally discriminatory and appealed on those grounds.

The parties disagreed on what version of rational basis review the court should apply, and the judges rejected the food trucks’ argument that the regulation must have a “real and substantial” relation to the city’s goal.

According to the court, the rights in question were not “important private rights” under the Maryland Declaration of Rights; if they were it would have triggered “a more searching inquiry” into the rationale for the law.

“Their right to be mobile vendors isn’t threatened, only their right to park and sell in certain places within Baltimore City,” Nazarian wrote. “This purely economic regulation gets the highest level of legislative deference under the traditional rational basis review.”

Under that deferential standard, the court concluded the rule “rationally furthers the City’s legitimate interest in addressing the free-rider problem that arises when mobile vendors set up within a block of direct brick-and-mortar competitors.”

The court did not express whether the proximity ban will work, but said that there are plausible reasons for enacting it and that the “(court’s) role is not to screen for bad policy, but for unconstitutional legislation.”

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