In Pizza di Joey, LLC & Madame BBQ, LLC v. Mayor and City Council of Baltimore (No. 41, Sept. Term 2019) (Aug. 17, 2020), the Maryland Court of Appeals engaged in a scholarly review of justiciability, standing, substantive due process, equal protection, and the void-for-vagueness doctrine. It also addressed the history of the modern day food truck and the origins of the adage, “there ain’t no such thing as a free lunch.” Fifty-six pages later, the court concluded that Baltimore City exceeded no constitutional limitations on commercial regulation when, for the protection of brick-and-mortar establishments and the neighborhoods they serve, it prohibited food trucks from parking within 300 feet of competing restaurants.
With a lineage dating back to the Old West “chuck wagon,” the food truck business experienced significant growth after the 2008 recession. As restaurant closures limited opportunities for aspiring chefs, the low cost of a food truck relative to the investment required to open and maintain a restaurant made street vending an attractive “first rung on these entrepreneurs’ climb up the ladder of economic success.” Id. at 6 (citation omitted). In Baltimore City alone, the number of food trucks increased nearly threefold from 2011 to 2017. Id.
In response, the City enacted an ordinance “to promote ‘entrepreneurship and a vibrant business climate for food truck vendors and local restaurants.’” Id. at 6-7 (quoting Council Bill 14-0305, Jan. 13, 2014). The ordinance imposed licensing and other regulatory requirements on food trucks. It also imposed several parking restrictions on them. Id. at 8.
One of these parking restrictions was challenged in Pizza di Joey: “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 … as that offered by the mobile vendor.” Baltimore City Code Art. 15, § 17-33. Violations were subject to civil and criminal penalties, and license revocation. Id., § 17-41 through 44. No such sanctions had ever been sought by the City, however, which preferred to enforce the ordinance simply by asking an offending vendor to move, and then only if it received a complaint from a nearby restaurant. Slip Op. at 10.
Pizza di Joey, which offered Italian cuisine, and Madame BBQ, which served barbeque and a range of sandwiches, soups and salads, owned food trucks licensed in Baltimore City. Their principals determined that there were few, if any, profitable locations in Baltimore that were more than 300 feet from a brick-and-mortar restaurant that sold the types of food offered by the trucks. Unable to operate in Baltimore without the risk of sanction, they filed a complaint for declaratory and injunctive relief, alleging that the protectionist provisions of the ordinance violated their substantive due process and equal protection rights guaranteed by Article 24 of the Maryland Declaration of Rights.
The City, for its part, defended the ordinance as an appropriate exercise of its regulatory authority, but first argued that the plaintiffs lacked standing, and that case was not “ripe” for review because the plaintiffs had never been cited for violating the rule. Slip Op. at 23-4.
The circuit court disagreed with all of the parties’ contentions except the City’s primary argument that the 300 foot rule did not deprive the food trucks of their substantive due process and equal protection rights. Id. at 20-2. The trial judge did, however, enjoin the City from enforcing the ordinance after determining sua sponte that it was unconstitutionally vague as written and, therefore, void for its failure to properly define key phrases such as “same type of food product.” Id. at 21.
The Court of Special Appeals agreed with the circuit court on all of the issues except for its void for vagueness determination. It lifted the injunction, and the 300 foot rule was once again fully enforceable. Id. at 22. The City was sated. The food truck plaintiffs wanted another bite, and got it from the Court of Appeals.
The high court affirmed the judgment of the Court of Special Appeals, although it took a slightly different approach to its review of the constitutional claims than the lower courts had taken. After discussing and dismissing the City’s justiciability arguments, the court focused on the appropriate standard of review for the Article 24 claims.
Of the three recognized standards for judicial review of due process and equal protection claims – strict scrutiny (applied when a statute creates a distinction based on a suspect classification such as race or gender), heightened rational basis (used when a statute places a burden on “important personal rights not yet held to merit strict scrutiny but deserving of more protection than a perfunctory review would accord”), and rational basis (applied when the statute neither discriminates on the basis of a suspect classification nor burdens a fundamental constitutional right) – the lower courts employed the heightened rational basis test. Id. at 29-34 (citations omitted). While it agreed that the ordinance would survive this test, the Court of Appeals held that the appropriate standard of review to be applied under the circumstances of this case was the rational basis test. Id. at 34.
The rational basis test is the “least exacting and most deferential standard of constitutional review.” Id. at 31 (citations omitted). When applying the rational basis test, a reviewing court simply assesses whether the statute or ordinance is “rationally related to a legitimate government interest,” and must uphold it if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (citations omitted). In the context of the 300 foot rule, “[a] statute that places some constraints on the time and place where a person can practice a trade, but does not entirely prevent the person from pursuing that trade (and does not discriminate based on geography or another suspect classification that suggests the proffered legitimate governmental interest is pretextual), is reviewed under the rational basis test.” Id. at 34.
At trial, the City’s expert testified that brick-and-mortar restaurants help maintain the viability of its commercial districts. They are significant employers, occupy properties that generate property taxes, help to alleviate the contagion of commercial vacancies, energize the streetscape, and encourage visitors. Id. at 17. While he acknowledged that food trucks can make similar contributions, the expert testified that they do so on a much smaller scale, with no long-term commitment to the geographic area, and often at the expense of the restaurants that helped create the very atmosphere that drew food trucks to the area in the first place. Food trucks thus become “free riders” on the commercial vitality that brick-and-mortar investors bring to the City. Id. at 18. This uncontroverted testimony was accepted by the trial court and incorporated into its finding that the elimination of the threat posed by mobile vendors to restaurants provided a rational basis for the 300 foot rule. Id. at 39-40.
The Court of Appeals agreed that the City’s effort to balance the competing interests of restaurants and food trucks did not offend the state constitution. The Court also agreed with the truck owners that lawmakers could have left it to market competition to balance these interests, but observed that they were not constitutionally required to do so. Id. at 40. “They reasonably could have concluded that, just as a ‘free lunch’ often turns out not actually to be free, there would be a cost to the purported ‘free lunch’ of unregulated competition that the Food Trucks offer here: mobile vendors would siphon business from brick-and-mortar restaurants and harm the economic vitality and, ultimately, the general welfare of the City…. While the Food Trucks claim this balancing of interests infringes on their rights to substantive due process and equal protection, we see it simply as democracy in action.” Id. at 40-1 (footnote omitted).
The Court also took the opportunity to explain the source of the concept that “there ain’t no such thing as a free lunch” – a 19th century ploy used by saloons to get patrons to order more drinks by offering them free, heavily salted lunches. Id. at 40, n. 14. And for its readers who are interested in culinary history as well as its constitutional discourse, the Court revealed the origin of the “chuck wagon” – a military wagon repurposed into a mobile kitchen in 1866 by Charles Goodnight to serve cattle drivers on Western trails. Id. at 4. The lone dissenting judge on the Court of Appeals took no issue with these historical observations. She did, however, agree with the City that “the case is not justiciable because it is not ripe for review.” (Raker, J. dissenting, p.1).