Street vending has been a part of the American economy since colonial times.[c]Ryan Devlin, Illegibility, Uncertainty and the Management of Street Vending in New York City, Address at the University of California-Berkeley Breslauer Symposium (Apr. 14, 2006), http://escholarship.org/uc/item/2dq8p606.[/c] Today, it provides for many an invaluable opportunity to achieve the American dream. Unfortunately, many would-be entrepreneurs are often shut out of starting street vending businesses due to complicated, costly and ever-expanding government regulations.[c]See Erin Norman et al., Inst. for Justice, Streets of Dreams: How Cities Can Create Economic Opportunity By Knocking Down Protectionist Barriers to Street Vending 3–4 (2011); see also John Cross, Street Vendors, Modernity and Postmodernity: Conflict and Compromise in the Global Economy, 20 Int’l J. Soc. & Soc. Pol’y 29 (2000).[/c] Proximity restrictions like Baltimore’s are one of the worst impediments to success for existing and prospective street vendors. That is why Joey Vanoni, Nikki McGowan Marks and the Institute for Justice have joined together to challenge Baltimore’s 300-foot rule and create one less obstacle for Baltimore’s mobile vending entrepreneurs.
300 Feet of Brick-And-Mortar Protectionism
In 2014, the Baltimore City Council enacted the 300-foot rule.[c]Baltimore City Council, Journal City Council of Baltimore 1963–64, Bill No. 14-0305, June 9, 2014, available at http://www.baltimorecitycouncil.com/Council_Journal/14-06-09~13th.pdf; Luke Broadwater, City Council backs new rules to expand food truck areas, Baltimore Sun, June 2, 2014, http://articles.baltimoresun.com/2014-06-02/news/bs-md-ci-food-truck-vote-20140602_1_babila-lima-food-truck-baltimore-city-council; Payam Agha-Ghassem, Food Truck Legislation Passes in Baltimore City, Baltimore Magazine, June 18, 2014, http://www.baltimoremagazine.net/2014/6/18/food-truck-legislation-passes-in-baltimore-city.[/c] Under the law, 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.”[c]Baltimore City Code Art. 15, § 17-33.[/c] A mobile vendor is “any person that sells, distributes or offers to sell or distribute” food, merchandise, or services from “a motor vehicle on City streets or private property.”[c]Id. § 17-1(e)(1).[/c] Thus, a mobile vendor’s ability to operate on public or private property turns on whether it sells the same thing as a nearby brick-and-mortar business.
Penalties for violating the law are severe. In addition to $500 fines for each violation, the city may suspend or revoke the mobile vendor’s license.[c]Id. §§ 17-42, -44(a).[/c] After three violations of the mobile vending regulations in a single year, including the 300-foot rule, the City must revoke the mobile vendor’s license.[c]Id. § 17-44(b).[/c] Once that happens, a mobile vendor cannot apply for a new license for an entire year.[c]Id. § 17-44(c).[/c] Threatened with severe fines and the possibility of being put out of business, mobile vendors go out of their way to avoid neighborhoods with competing brick-and-mortar businesses.
This law creates 300 foot “no vending” zones throughout the entire city. For example, fashion trucks, which have gained in popularity in recent years, would find it hard to operate in Baltimore because they could not open for business within 300 feet of any clothing store. A fashion truck could even be prohibited from operating within 300 feet of a tourist gift shop or a convenience store that sells t-shirts.
But the proximity ban falls hardest on Baltimore’s budding food truck industry. With so many restaurants and other retail food establishments throughout the city, food trucks are prevented from operating in large swaths of the city and are forced to operate from undesirable locations away from potential customers. Food trucks have to steer clear of not only restaurants, but also fast food chains, sandwich shops, and cafes. Additionally, the severe penalties discourage prospective food truck owners and food trucks in nearby counties from operating in Baltimore at all. For these entrepreneurs, the penalties make the risk of serving food in the city too great. As a result, food trucks are left with fewer customers and consumers are left with fewer choices.
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Baltimore’s 300-foot rule is not just bad policy, though; it is unconstitutional. The Maryland Constitution protects the rights of entrepreneurs like Joey and Nikki to earn an honest living free from arbitrary restrictions. There is no legitimate justification, including protecting public health and safety, to prohibit a food truck from operating on a certain block because a nearby brick-and-mortar business happens to sell the same type of food, merchandise or service. The 300-foot rule has only one purpose: To protect brick-and-mortar businesses from competition. Economic protectionism is simply unconstitutional.
Joey Vanoni and the Pizza di Joey food truck
Joey Vanoni owns and operates the Pizza di Joey food truck. A Navy veteran and current reservist, Joey returned from Afghanistan in 2013 and dreamed of opening his own pizza business. Rather than opening up a brick-and-mortar location, Joey envisioned a pizza food truck as a unique way to serve the diverse communities of Baltimore. Through hard work and the support of his friends, family and fellow veterans, Pizza di Joey opened for business in 2014.
Today, Pizza di Joey crisscrosses Baltimore providing authentic New York-style pizza from the truck’s nearly 4,000 pound brick oven. But the food truck is more than just a business to Joey. He sees it as an opportunity to give back to the community. Never forgetting the challenges he faced finding employment after his tours of duty, Joey now employs other veterans in need of work.[c]Amy Aubert, Maryland veteran starts food truck company, hires unemployed veterans, WMAR Baltimore, http://www.abc2news.com/news/in-focus/local-veteran-starts-food-truck-company-hires-unemployed-veterans.[/c]
Joey is challenging Baltimore’s 300-foot rule because it threatens his lifelong dream of owning his own pizza business and because he believes that the city shouldn’t be limiting hungry Baltimoreans’ dining choices. Consumers, not government, should decide where and what they want to eat.
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Nikki McGowan Marks and the Mindgrub Cafe food truck
Nikki McGowan Marks owns and operates the Mindgrub Cafe food truck. Although it is a labor of love, Nikki got her start as a culinary entrepreneur because she was confronted with the sobering reality of providing for her three children as a single mother. What began as a business offering cooking classes for students in Howard County, Maryland, led to the opening of the Mindgrub Cafe, originally Madame BBQ, food truck. From the truck she serves health-conscious menu items, such as quinoa bowls, black bean burgers, and salmon wraps, along side the barbeque staples she originally served when she first opened for business, throughout the Baltimore metro area.
The Mindgrub Cafe food truck, however, is not just another way to help support her family. Nikki uses it as an opportunity to inspire and give practical hands-on experience to future culinary entrepreneurs. Often former students help man the truck at special events in order to gain valuable cooking and customer service experience. Nikki hopes that her story inspires others to be bold in pursuing their dreams.
Nikki is challenging Baltimore’s 300-foot rule because it prevents her from successfully operating in the city. For Nikki, the possibility of receiving $500 tickets and having her vending license revoked is too great a risk. The 300-foot rule is creating a needless obstacle for Nikki and entrepreneurs like her eager to satisfy Baltimoreans’ diverse tastes.
The defendant is the city of Baltimore. The City Council passed and enacted Baltimore’s 300-foot rule on June 9, 2014.[c]See Agha-Ghassem, supra note 3.[/c]
The National Street Vending Initiative
IJ’s National Street Vending Initiative is a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and the court of public opinion. As it has done across the country, IJ stands ready to challenge such restrictions, and it will help street vendors oppose attempts to shut them down through the use of unconstitutional protectionist laws.
The Litigation Team
IJ filed its petition in this case, Pizza di Joey, LLC v. City of Baltimore, on May 11, 2016, in the Circuit Court for Baltimore City. The litigation team for IJ in this case includes attorneys Greg Reed, Robert Frommer, and Ari Bargil. They will be assisted by Glenn E. Bushel of Tydings & Rosenberg, LLP.
The Institute for Justice: A History of Protecting Economic Liberty
The Institute for Justice is a public interest law firm that brings challenges nationwide in support of fundamental individual liberties. IJ has successfully challenged restrictions on economic liberty across the nation.