Pizza Di Joey, LLC v. Mayor and City Council of Baltimore

• Decision Date: 30 May 2019
• Docket Number: No. 2411, Sept. Term, 2017,2411, Sept. Term, 2017
• Citation: 209 A.3d 184,241 Md.App. 139
• Parties: PIZZA DI JOEY, LLC, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE
• Court: Court of Special Appeals of Maryland

241 Md.App. 139

209 A.3d 184

PIZZA DI JOEY, LLC, et al.

v.MAYOR AND CITY COUNCIL OF BALTIMORE

No. 2411, Sept. Term, 2017

Court of Special Appeals of Maryland.

May 30, 2019

Argued by: Robert P. Frommer, Institute for Justice, Arlington, VA (Ari Bargil, Institute for Justice, Miami, Florida, Glenn E. Bushel, Baltimore, MD.), on the brief for Appellant.

Argued by: Andre M. Davis, City Solicitor (Mark J. Dimenna, Michael P. Redmond, Rachel Simmonsen, Baltimore, MD), on the brief for Appellee.

Panel: Nazarian, Friedman, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Nazarian, J. Baltimore is home to over a thousand brick-and-mortar restaurants and about seventy licensed food trucks, including Pizza di Joey and Madame BBQ (collectively "the Food Trucks"). Baltimore City Code, Article 15, § 17-33, known colloquially as the "300-foot rule," prohibits mobile food vendors from conducting business within 300 feet of brick-and-mortar establishments that sell primarily the same kind of food.

In October 2016, the Food Trucks sued the City in the Circuit Court for Baltimore City. They asked the court to declare that the 300-foot rule functionally prohibited them from operating in Baltimore City and, therefore, violated their rights under Article 24 of the Maryland Declaration of Rights. The City countered that the rule did not prevent food trucks from thriving in Baltimore City and that the rule's location restrictions furthered the City's legitimate interest in supporting local brick-and-mortar businesses that had invested in Baltimore's commercial neighborhoods.

After a trial, the circuit court found (using what it called "heightened rational basis review") that the 300-foot rule did not violate the Food Trucks' rights under Article 24, but that the ambiguities in the statutory language rendered it unconstitutionally vague. We hold that the ordinance should have been measured for rational basis, that it does not violate Article 24, and that it is not unconstitutionally vague. We affirm the circuit court's rulings on Article 24 and reverse the judgment enjoining the City from enforcing the rule.

I. BACKGROUND

A. The 300-Foot Rule

The Baltimore City Code regulates the places mobile food vendors can operate. One restriction, known as the "300-foot rule," has been around since the 1970s, but in its most recent form, which took effect on February 28, 2015, prohibits mobile vendors¹ from operating within 300 feet of a business that sells primarily the same food, merchandise, or service:

A mobile vendor may not park a vendor truck within 300 feet of any retail business establishment that is primarily engaged in selling the same type of food product, other merchandise, or service as that offered by the mobile vendor.

Baltimore City Code, Art. 15, § 17-33.²

A food truck that violates the 300-foot rule commits a misdemeanor. Baltimore City Code, Article 15, § 17-42. Violators must pay a fine of $ 500, id. , and may also have their mobile vending licenses suspended or revoked. Baltimore City Code, Art. 15 § 17-44(a). If a licensee commits three violations within a one-year period, revocation is mandatory. Baltimore City Code Art. 15 § 17-44(b). And once a mobile vendor's license has been revoked, "the former licensee may not apply for a new license until at least 1 year from the date of revocation." Baltimore City Code, Art. 15, § 17-44(c).

A number of City agencies, including the Department of Transportation, the Department of General Services, the Baltimore City Police Department, and the University of Maryland Police, enforce the 300-foot rule.³ Aside from the text of the rule itself, no guidelines elaborate on how the rule should be enforced or define the phrases "primarily engaged in" or "same type of food product" with any further precision.

Although these penalties have been on the books since 2015, no vendor has received a citation or had a license suspended for violating the 300-foot rule. Instead, when mobile vendors violate the rule, the City's enforcement authorities ask them to relocate or to alter their menus according to what brick-and-mortar establishments are nearby. Enforcement authorities initiate these measures only in response to a complaint that a food truck is parked too close to a brick-and-mortar business.

B. The Food Trucks

Pizza di Joey is a Maryland-based limited liability company and a mobile vendor licensed in Baltimore City. See Baltimore City Code, Art. 15, § 17-1. Pizza di Joey is an Italian kitchen on wheels, complete with 4000-pound brick pizza oven, and has sold "authentic New York style brick oven pizza, as well as some Italian pastas and salad" since 2014. The "Joey" of Pizza di Joey is its owner and founder, Joseph Salek-Nejad, known professionally as Joey Vanoni.⁴ Pizza di Joey is open for business several afternoons per week. Although Mr. Vanoni had intended his "center for business operation" to be Baltimore City, he now operates in Anne Arundel County the vast majority of the time, purportedly as a result of the prohibitive nature of the 300-foot rule.

Pizza di Joey has never been cited for violating the 300-foot rule, but was approached once by law enforcement in 2015 in response to a brick-and-mortar restaurant's complaint. Pizza di Joey was setting up for lunch service on the 800 block of West Baltimore Street when a University of Maryland Police officer approached and told Mr. Vanoni that a nearby deli had complained that he was parked too close. Mr. Vanoni explained to the officer that because the deli did not serve pizza, he understood that he was permitted to park his truck nearby without violating the 300-foot rule. The officer was not familiar with the particulars of the rule, so Mr. Vanoni pulled up the text of § 17-33 on his laptop and showed it to him. The officer agreed after reviewing the rule that there was no violation and went on his way. Beyond selling the same officer a slice of pizza later that day, that one encounter represented all of Pizza di Joey's interactions with enforcement authorities relating to the 300-foot rule.

Madame BBQ is a Maryland-based limited liability company founded in the summer of 2014. In 2016, Madame BBQ rebranded its food truck as MindGrub Café and shifted from selling barbeque to more health-conscious cuisine, self-described as "brain food for knowledge workers." Madame BBQ is owned by Nicole McGowan, who has worked in the food service industry since she was fifteen. When Ms. McGowan began operating Madame BBQ in 2014, she conducted most of her business in Howard County. At that time, she was not a licensed mobile vendor in Baltimore City and only took her truck there occasionally through one-day permits for block parties and special events. At the time of trial, Ms. McGowan was in the process of relocating "the focus of [her] operations" to Baltimore City, where she would ideally like to sell lunch from her truck on weekday afternoons. She is now licensed in Baltimore City.

Madame BBQ has never been cited for violating the 300-foot rule and has never had any encounter with enforcement agencies. But the rule is so prohibitive, Ms. McGowan claims, that she does not take her truck out in Baltimore City because there is nowhere she feels she can serve lunch that doesn't "make [her] afraid to get a citation or lose [her] license."

C. The Lawsuit

Pizza di Joey and Madame BBQ filed this action in the Circuit Court for Baltimore City on May 11, 2016. They alleged that the 300-foot rule violated their rights to equal protection and due process under Article 24 of the Maryland Declaration of Rights, both on its face and as applied. The Food Trucks sought a declaratory judgment stating the 300-foot rule was unconstitutional and a permanent injunction against its enforcement. The City filed a Motion to Dismiss the complaint, which was denied. The parties' cross-motions for summary judgment were also denied and the case was set for trial.

The trial lasted two days and included testimony from Mr. Vanoni, Ms. McGowan, and Anirban Basu, an expert witness offered by the City who testified about the impact of food trucks on brick-and-mortar businesses and the economic viability of commercial neighborhoods. The Food Trucks' owners' depositions also were admitted into evidence, along with the depositions of two City employees deposed as its representatives—Gia Montgomery of the Department of Transportation, who testified that she was the person most qualified to speak authoritatively on mobile vending licensure and regulation enforcement, and Babila Lima of the Department of General Services ("DGS"), who drafted both the 300-foot rule and the materials posted to the DGS website offering guidance on the mechanics of mobile vending regulations.

Mr. Vanoni testified that the 300-foot rule has essentially driven him out of Baltimore City, contrary to his original intention to make Baltimore the center of his business. He explained that the rule is "extremely limiting on my business' ability to successfully operate.... I've been compelled to operate outside the City which is not what I intended. I'd like to operate [in Baltimore]." He claimed that the 300-foot rule prohibited him from operating in the Baltimore neighborhoods where his business was most likely to succeed, such as Hampden:

MR. VANONI: It's a great area. It's [an] up and coming neighborhood here in Baltimore. I've got some friends that live up there. They bought some homes there and it's kind of like a culinary incubator.... It's upbeat. It's fun. And it's a cool place to hang out.

PIZZA DI JOEY'S COUNSEL: What steps did you take to analyze the effect of the 300-foot rule and your ability to operate in the Hampden area?

MR. VANONI: I got a list of all the restaurants in the area and I took evaluation of their menus and compared their menus trying to look for any conflicts with regards to this 300-foot rule. Then I shortened my list, went to Hampden and walked the streets verifying their locations with a map

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