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Maryland Court of Appeals Upholds Protectionist Food Truck Rules

Court rejects challenge to 300-foot ban on mobile vendors selling food “similar” to brick-and-mortar restaurants

Annapolis, Md.—The Maryland Court of Appeals yesterday rejected Baltimore food truck owners’ challenge to city rules preventing mobile vendors from operating within 300 feet of any brick-and-mortar business that primarily sells the same products or services. The Institute for Justice (IJ) and two food trucks, Pizza di Joey and Madame BBQ, first challenged the rule in 2016. The Court held that Baltimore could enact the rule out of fear that “mobile vendors would siphon business from brick-and-mortar restaurants” which Baltimore could speculate may harm “the vibrancy of its commercial districts.” And despite officials admitting they could not agree about how to interpret or enforce the ban, the Court said “the fact that different enforcement authorities might come to different conclusions. . .does not trouble us.”

“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,” said IJ Senior Attorney Robert Frommer. “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. Now, food trucks cannot operate even if the nearby restaurant were temporarily closed by a lockdown.”

“This is a sad day for Marylanders, both for those who aspire to own a food business and hungry customers who love food trucks,” said Joey Vanoni, owner of Pizza di Joey. “Without my food truck, I never would have been able to also open a pizza shop at Cross Street Market, no thanks to Baltimore City government. Starting with a brick and mortar restaurant was simply beyond my reach at the time and the same goes for many entrepreneurs here in Maryland. I think this ruling just makes it even more unnecessarily difficult for small business owners like myself in Baltimore to get ahead and achieve the American dream.”

In December 2017, the Baltimore Circuit Court ruled that the 300-foot ban was vague and could not be enforced. Baltimore officials testified that they had no clear guidelines for when food was “similar” enough to warrant enforcement against a food truck. That ruling was overturned by the Court of Special Appeals in May 2019 and the ban was reinstated. Under the ban, violators would be guilty of a misdemeanor that could result in a $500 fine and loss of their vending license.

“Unfortunately for entrepreneurs across the state, the Court of Appeals’ decision signals that courts should not strike down laws purposely designed to protect a preferred business at the expense of another,” said IJ Attorney Ari Bargil. “The responsibility now falls to the Maryland General Assembly to pass legislation that rejects economic protectionism as a legitimate government interest and provides meaningful protections for entrepreneurs statewide.”

The Court of Appeals explained that its decision “offer[ed] no views on the wisdom or the economic efficacy of the 300-foot rule,” and upheld the ban in light of its determination that “[o]ur role is not to screen for bad policy.”

“This decision is a severe blow to anyone hoping the Court of Appeals would safeguard the right to earn an honest living in Maryland,” said Frommer. “The Court of Appeals made clear in its opinion that it weighed the government’s speculation more heavily than the actual evidence showing the 300-foot rule harms businesses and consumers alike.”

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