Pizza Di Joey, LLC v. Mayor & City Council of Balt.

• Decision Date: 17 August 2020
• Docket Number: No. 41, Sept. Term, 2019,41, Sept. Term, 2019
• Citation: 235 A.3d 873,470 Md. 308
• Parties: PIZZA DI JOEY, LLC and Madame BBQ, LLC v. MAYOR and City Council OF BALTIMORE
• Court: Court of Special Appeals of Maryland

470 Md. 308

235 A.3d 873

PIZZA DI JOEY, LLC and Madame BBQ, LLC

v.MAYOR and City Council OF BALTIMORE

No. 41, Sept. Term, 2019

Court of Appeals of Maryland.

August 17, 2020

Argued by Robert P. Frommer (Institute for Justice, Arlington, VA; Ari Bargil, Institute of Justice, Miami, FL; Glenn E. Bushel, Tydings & Rosenberg, LLP, Baltimore, MD), on brief, for Petitioners.

Argued by Rachel Simmonsen, Co-Director Appellate Practice Group (Michael Redmond, Co-Director, Appellate Practice Group and Andre M. Davis, City Solicitor, Baltimore City Department of Law, Baltimore, MD), on brief, for Respondent.

Amicus Curiae Economics Professors in Support of Petitioners: James R. Wedeking, Esquire, James F. Hasson, Esquire, Sidley Austin LLP, 1501 K Street, N.W., Washington, D.C. 20005.

Amicus Pacific Legal Foundation in Support of Petitioners: Gregory R. Reed, Esquire, The Cullen Law Firm, PLLC, 1101 30th Street, NW., Suite 300, Washington, D.C. 20007, David J. Deerson, Esquire, Timothy R. Snowball, Esquire, Pacific Legal Foundation, 930 G Street, Sacramento, CA 95814.

Amicus Curiae Urban Reform in Support of Petitioners: Mylan L. Denerstein, Esquire, Vincent Eisinger, Esquire, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, David A. Schnitzer, Esquire, Gibson, Dunn & Crutcher LLP, 1050 Connecticut Avenue, N.W., Washington, DC 20036.

Argued Before: McDonald, Watts, Hotten, Getty, Booth, Biran, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Biran, J.

"There ain't no such thing as a free lunch."

– adage popularized as the acronym "TANSTAAFL" in The Moon Is a Harsh Mistress by Robert A. Heinlein (1966)

According to one scholar, in nineteenth-century America, "cities were regarded almost purely as economic entities."

Dennis R. Judd, The Politics of American Cities: Private Power and Public Policy 2 (1979). Thus, in that era, "[l]ocal politics could be defined as the enterprise of protecting and promoting economic vitality." Id. In modern America, Baltimore City and other local governments have had more on their plates when promoting the general welfare than just ensuring economic vitality. In 2020, the coronavirus pandemic and concerns about racism in policing have dominated civic discourse in Maryland and throughout the nation. In Baltimore City, policymakers and concerned citizens have confronted issues relating to equality and policing (and other social issues) for many years prior to this one. Nevertheless, promoting and maintaining economic strength remains an important governmental interest in Baltimore and other cities. Without economic strength, cities struggle to remain vibrant, as tax bases shrink and public safety challenges increase. Promoting a city's general welfare requires that local lawmakers balance competing interests and make sometimes difficult choices. This case concerns Baltimore City's efforts to balance the interests of brick-and-mortar restaurants and food trucks.

Joseph Salek-Nejad, known professionally as Joey Vanoni, and Nicole McGowan are the respective owners of Pizza di Joey, LLC ("Pizza di Joey") and Madame BBQ, LLC ("Madame BBQ"). Since 2014, both Pizza di Joey and Madame BBQ have been part of Maryland's food truck industry, with Pizza di Joey primarily operating in Anne Arundel County and Madame BBQ (rebranded in 2016 as MindGrub Café) in Howard County. Pizza di Joey and Madame BBQ (collectively, the "Food Trucks") seek to operate in Baltimore City, but contend that they are unable to do so due to a provision in Baltimore's street vending ordinance that restricts a food truck from parking within 300 feet of a brick-and-mortar restaurant that primarily sells the same type of food (the "300-foot rule" or the "Rule").

The Food Trucks filed suit in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (the "City"), claiming that the 300-foot rule violates Article 24 of the Maryland Declaration of Rights by restricting the Food Trucks’ ability to practice their trade. Specifically, the Food Trucks alleged that the 300-foot rule's restraint on their ability to operate their businesses in Baltimore deprives them of equal protection and substantive due process of law under Article 24. At a bench trial, the City introduced expert testimony from an economist, who testified that the 300-foot rule addresses a "free rider" problem posed by food trucks siphoning business from brick-and-mortar restaurants after those restaurants have invested their resources and become semi-permanent members of the neighborhoods in which they are based. The City's expert testified that, while food trucks provide an important service, they threaten the vibrancy and viability of the City's commercial districts if allowed to operate too closely to brick-and-mortar establishments that sell primarily the same type of food.

After receiving evidence from both sides, the circuit court held that the 300-foot rule does not violate Article 24's requirements of equal protection and substantive due process. However, despite the Food Trucks’ explicit disavowal of a claim based on the procedural due process doctrine of vagueness, the court enjoined the City from enforcing the 300-foot rule, concluding on its own initiative that the Rule is impermissibly vague.

The parties cross-appealed to the Court of Special Appeals, which ruled in favor of the City. The intermediate appellate court agreed with the circuit court that the 300-foot rule does not deprive the Food Trucks of substantive due process or equal protection under Article 24. However, the Court of Special Appeals reversed the circuit court's grant of injunctive relief, holding that the Food Trucks had not preserved a vagueness claim for appellate review, and that such a claim failed on the merits in any event.

The Food Trucks appealed to this Court. For the reasons discussed below, we agree with the Court of Special Appeals that the 300-foot rule is constitutional.

IBackground

A. Food Trucks

Not every city has had the same experience with food trucks over the past decade. In some cities, the emergence of food trucks has been viewed as a wholly positive development. In other cities, the relationship between food trucks and established businesses and the local citizenry has been more complicated. But there is no doubt that food trucks have become increasingly popular and prevalent in Baltimore and many other American cities over the past decade.

However, the idea behind a kitchen on wheels is not novel. In 1866, Charles Goodnight repurposed a military wagon into a mobile kitchen for cattle farmers traveling along Western trails. See Clay Coppedge, Good Eats on the Range , available at http://www.americanchuckwagon.org/images/CWarticle.pdf (accessed on July 15, 2020), archived at https://perma.cc/YLU6-6L66. Known as the chuck wagon, its popularity and uses expanded over the following century. After enjoying a steak at an event in Colorado, former President Theodore Roosevelt mounted a chuck wagon and spoke of the "great comfort" they provided on the frontier. At the "Chuck Wagon Lunch" , Baltimore Sun (Aug. 30, 1910). In the 1930s, a "restaurant on wheels" could travel to different destinations at a moment's notice. "Old Hutch" Feeds Famous Folk: Restaurant on Wheels is Site of Many Quick Repasts in Wilds , Washington Post (Aug. 9, 1936). In 1949, a restaurant in Little Rock, Arkansas styled a Jeep after a chuck wagon and used it to cater parties and events. Chuck Wagons Roll Again , Wall Street Journal (Mar. 14, 1949).

The mobile food industry took a different form in cities. Vendors have sold food from pushcarts in New York City for hundreds of years. See The Complete History of American Food Trucks , available at http://www.mobile-cuisine.com/business/history-of-american-food-trucks (accessed on July 13, 2020), archived at https://perma.cc/FWR3-RARW. In 1872, Walter Scott cut windows into a wagon parked outside an office in Providence, Rhode Island, from which he sold sandwiches and coffee. Similar "lunch wagons" began to appear in other cities. Devin Gannon, From oysters to falafel: The complete history of street vending in NYC , available at http://www.6sqft.com/from-oysters-to-falafel-the-complete-history-of-street-vending-in-nyc (accessed on July 13, 2020), archived at https://perma.cc/P468-FQGG. Near the end of the nineteenth century, nighttime food wagons, known as "Owls," appeared in New York City, serving hot food and drinks after restaurants closed. Id. After the advent of the automobile, food wagons eventually became motorized. Id.

The person widely credited with creating the first of today's modern "food trucks" was Raul Martinez, who, in 1974 in Los Angeles, converted an old ice cream truck into a mobile lunch wagon serving tacos. See Lynn Brown, The Rise of the Taco Truck, available at https://daily.jstor.org/rise-of-the-taco-truck (accessed on July 13, 2020), archived at https://perma.cc/D6JW-ZGWX. Six months later, thanks to the popularity of his truck, Mr. Martinez was able to open a brick-and-mortar restaurant called King Taco in Los Angeles, which became a successful chain of restaurants. Mr. Martinez's success led others to try to follow in his footsteps, and "taco trucks" became common in California and the Southwest. Id.

One of the first gourmet food trucks to receive national attention was Kogi BBQ in Los Angeles, which used Twitter to develop a fan base for its "Korean Short Rib Taco" and other Korean-Mexican fare. Id. ; see also David Farley, The taco that's taking the US by storm, available at http://www.bbc.com/travel/story/20150130-the-taco-thats-taking-the-us-by-storm (accessed on July 13, 2020), archived at https://perma.cc/JZX3-F8TU. Others on the west coast, and soon after on the east coast, took note of Kogi BBQ's success, leading chefs to "scour[ ] used car lots to find trucks to convert into mobile restaurants." The Rise of the Food Truck , available at http://www.restaurantengine.com/rise-food-truck ...