Food Trucks Win First Legal Battle Over Rule To Keep Them Away From Restaurants

Image courtesy of Institute for Justice

A restaurant might already have enough competition from other eateries next door, across the street, or even in the same building, so they probably don’t want yet a competing restaurant on wheels parking on their block. But when restaurants and food trucks share a similar menu, can a city require that they not share the same general space?

Earlier this year, we told you about Baltimore food truck owners who were challenging a new city ordinance that prohibits these rolling restaurants from operating 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.”

A pair of truck owners sued the city, claiming that the so-called “300-foot rule” violates their rights to equal protection and due process under the Maryland state constitution.

The city responded by filing a motion to dismiss [PDF], arguing that the rule is a “wholly local economic regulation that does not interfere with a fundamental right” that serves the legitimate interest of advancing the general welfare of Baltimore.

“Brick-and-mortar restaurants are essential to the local economy. Unlike food trucks, restaurants are permanent fixtures in a local community,” explains a memorandum of law filed with the motion. “A restaurant can serve as an anchor business in a commercial district that attracts other complimentary [sic] businesses. The immobility of a restaurant forces it to be accountable to the local community that it serves… Encouraging economic development in the City’s commercial districts, which will in turn provide economic stability, is a legitimate exercise of a legislature’s police power.”

The city maintains that it’s within its discretion to “determine what may have a deleterious effect on the local economy,” and theorizes that “It is wholly possible that by parking directly in front of a pizzeria or a barbecue restaurant the Plaintiffs could harm local businesses.”

The food trucks fired back with a response [PDF], saying the case should not be dismissed at this early stage because they had already pleaded sufficient facts and a valid claim for relief. They also claimed that legal challenges to similar proximity-based restrictions at least proceeded to the evidentiary hearing stage.

“[T]he motion to dismiss stage is neither the time nor the place for Defendant’s factual disputes and imagined justifications,” reads the response. “Dismissal is only appropriate if the facts and inferences arising from Plaintiffs’ Complaint itself would, if proven, still not afford them relief.”

The plaintiffs also say the city ignored a number of the facts that underly the original complaint, such as the argument that the 300-foot rule does not merely restrict where food trucks can operate, but effectively determines which kinds of food trucks can operate where.

One plaintiff operates a pizza food truck; the other sells barbecue. The pizza truck is barred under the rule from setting up shop near an existing pizzeria, but the other plaintiff could park in that 300-foot zone (assuming no one nearby sells barbecue).

Likewise, while the city contends that the purpose of the rule is to protect established bricks-and-mortar restaurants, the plaintiffs counter that there is nothing in the ordinance to prevent a new pizzeria opening up down the street from an existing pizza shop.

“These facts together demonstrate that the 300-foot proximity ban (1) arbitrarily discriminates between food trucks; (2) arbitrarily restricts where mobile vendors, like Plaintiffs, may operate; (3) bears no rational relationship to any legitimate government interest; and (4) serves only to protect the private financial interests of brick-and-mortar businesses from mobile vendor competition,” argue the plaintiffs.

This morning, the judge issued an order [PDF] denying the city’s motion to dismiss, finding that the plaintiffs had indeed pleaded sufficient facts and stated a valid claim for relief.

The food trucks still have a long road ahead of them before this matter is resolved, but today’s decision gets them through the first big legal roadblock.

“Contrary to the city’s argument, Maryland courts take seriously the right to pursue one’s chosen profession free from arbitrary and irrational regulations,” said attorney Greg Reed, who argued the case.