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Md. high court upholds Baltimore’s food truck restriction

Joey Vanoni, owner of the Pizza di Joey food truck, slices a buffalo chicken pizza in his mobile kitchen. Vanoni is suing Baltimore city over a rule that prevents him from setting up within 300 feet of a brick-and-mortar restaurant that specializes in pizza. (Maximilian Franz/File photo)

Joey Vanoni, owner of the Pizza di Joey food truck, slices a buffalo chicken pizza in his mobile kitchen in 2017. Vanoni unsuccessfully sued Baltimore city over a rule that prevents him from setting up within 300 feet of a brick-and-mortar restaurant that specializes in pizza. (Maximilian Franz/File photo)

Maryland’s top court Monday upheld the constitutionality of a Baltimore ordinance that bans food truck vendors from operating within 300 feet of restaurants selling similar edibles.

The Court of Appeals said the “300-foot rule” is “rationally related” to the city’s legitimate interest in ensuring the economic vibrancy of its commercial districts and their restaurants. The rule validly addresses Baltimore’s desire that food truck operators not be “free riders” who poach customers from the nearby restaurants which draw customers and tax revenue to a neighborhood, the court said.

The Court of Appeals’ decision was a defeat for Joey Vanoni and Nicole McGowan, operators of the Pizza di Joey and Madame BBQ food trucks, respectively.  They had argued through counsel that the city ordinance singles out food trucks in violation of the Maryland Constitution’s due process and equal protection provisions.

The high court said the food trucks may still sell their products — just not within 300 feet of a pizza parlor or barbecue restaurant, in the case of Pizza di Joey and Madame BBQ.

“The city established at trial that protecting brick-and-mortar restaurants through the 300-foot rule is not an end in itself, but rather is a means to an end: maintaining vibrant commercial districts,” Judge Jonathan Biran wrote for the high court.

“The creation and retention of vibrant commercial neighborhoods surely is a legitimate interest that the city may seek to achieve through the enactment of ordinances,” Biran added. “That the means it has chosen to do so in this instance reduces the competition brick-and-mortar restaurants face from mobile vendors does not render the 300-foot rule unconstitutional. To the contrary, our cases demonstrate that, in furtherance of the general welfare, legislative bodies may limit competition as long as they do not impermissibly discriminate based on a suspect classification (such as race) or otherwise make arbitrary and capricious distinctions that do not further the general welfare of the community.”

Acting Baltimore Solicitor Dana P. Moore said in an email Tuesday that “we are very pleased” with the decision “and that the city’s solution for supporting the co-existence of different business models will allow Baltimore’s food industry to sustain and flourish.”

Robert Frommer, the food truck operators’ attorney, assailed the decision.

“At a time when Americans are struggling to get by and food options are growing more limited each day, Baltimore has been allowed to put further limits on food options to protect established restaurants and businesses,” Frommer, of the Arlington, Virginia-based Institute for Justice, said in a statement Tuesday. “The city’s 300-foot ban makes even less sense today as lockdowns in response to COVID-19 force restaurants to operate more like food trucks, often dispensing food rather than allowing diners to eat in.”

Irma S. Raker was the only member of the seven-judge panel not to join Biran’s opinion.

Raker wrote that Pizza di Joey and Madame BBQ lacked standing to challenge the ordinance because their claim was not legally “ripe” as neither had been cited for violating the 300-foot rule or had shown they lost money because of the restriction.

“(R)ipeness is a jurisdictional requirement to create a justiciable claim in court,” wrote Raker, a retired judge sitting by special assignment.

The food truck operators’ “subjective feeling of inhibition or fear arising from prospective enforcement of a law is not sufficient to establish ripeness,” Raker added.

In its decision, the Court of Appeals agreed with a lower court decision that the city’s ordinance is constitutional.

Violators of the 300-foot rule, which went into effect in 2015, can be assessed a criminal misdemeanor penalty of $500 per offense and may have their mobile vending license suspended or revoked. A third violation of the rule results in license revocation.

Pizza di Joey and Madame BBQ first challenged the ordinance in Baltimore City Circuit Court in May 2016. Baltimore City Circuit Judge Karen C. Friedman struck down the ordinance in December 2017 as unconstitutionally vague.

But the intermediate Court of Special Appeals overturned Friedman’s decision in May 2019, saying the ordinance was not vague and that the 300-foot rule was rationally related to a legitimate governmental interest. Pizza di Joey and Madame BBQ then sought review by the high court.

The Court of Appeals rendered its decision in Pizza di Joey LLC and Madame BBQ LLC v. Mayor and City Council of Baltimore, No. 41, September Term 2019.

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