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Food truck owners challenge '300-foot rule' at trial

Two food truck owners took the witness stand in Baltimore City Circuit Court this week in an attempt to overturn a rule that prohibits them from operating near brick-and-mortar restaurants.

The trial, which began Thursday and ended Friday, was the latest step in a lawsuit filed in May 2016 by food truck owners Joseph Salek-Nejad (“Joey Vanoni”) and Nicole “Nikki” McGowan, who are seeking relief from a law that bans them from setting up shop within 300 feet of restaurants and retailers with similar foods.

Lawyers for the food truck owners argued the rule is unconstitutional, while the city’s attorneys said it falls within the city’s police power.

Baltimore City Circuit Court associate judge Karen C. Friedman is expected to issue a ruling in the coming weeks.

Salek-Nejad, who owns the Pizza di Joey food truck, and McGowan, owner of Mindgrub Cafe, testified on Thursday about their experiences operating food trucks within city limits. Neither McGowan nor Salek-Nejad has been punished for violating the 300-foot rule, but they said they avoid operating in the city out of fear they will receive citations or fines, or have their mobile vending licenses revoked.

The food truck owners were represented by Arlington, Va.-based Institute for Justice attorneys Robert Frommer, Ari Bargil and Gregory Reed. Mark Dimenna and Jeff Hochstetler represented the city.

Both food truck owners said they would like to operate in neighborhoods like Hampden and Federal Hill but that there are too many restaurants offering similar foods. They showed maps of those neighborhoods pinpointing restaurants with conflicting menus and the 300-foot-radius around each.

McGowan recently obtained a permit to operate in the city in conjunction with her new commissary kitchen in Locust Point, Share Kitchen. She said she wants to operate in Locust Point but rarely does.

The same goes for Hampden, she said.

“I feel like there are quite a few hipsters in that neighborhood who would absolutely gobble up my black bean burgers,” she said. “There’s no place I can park there without fear.”

Dimenna questioned whether other restrictions, such as parking meters with time limits, would also prohibit food trucks from setting up shop in the areas in question.

The attorneys argued the meaning of the vague language of the law, which states that food trucks may not operate within 300 feet of retailers “primarily engaged in selling” the same type of food. At one point, Reed asked Salek-Nejad what “primarily engaged in selling” meant to him.

“I have no idea,” Salek-Nejad responded.

Both food truck owners said they had neither requested nor received guidance from the city on exactly how the law is enforced.

On Friday morning, the city’s expert witness, Baltimore-based economist Anirban Basu, testified that brick-and-mortar restaurants are part of a vibrant economy and that food trucks can threaten their viability. Basu, the CEO of Sage Policy Group, explained why it’s in the city’s interest to protect restaurants.

“Not only are they investing more capital, they’re making a bigger bet on the city of Baltimore,” he said.

Basu said food trucks benefit from investments restaurants make in improving their communities and driving business.

“They’re cherry-picking,” he said. “It doesn’t strike me as fair competition. It does strike me as free-riding.”

He said the 300-foot rule mitigates the free-rider problem.

Frommer attempted to discredit a report Basu compiled supporting the 300-foot rule, questioning its sources and lack of hard data.

In closing arguments, Frommer said the law was unconstitutional, and at best irrational and arbitrary. Dimenna said if food trucks threaten the viability of restaurants, they thereby threaten commercial districts and the city’s general welfare, so it’s within the city’s police power to impose the 300-foot rule.

“Vibrant restaurants are essential to the general welfare of the city,” Dimenna said.

Earlier this summer, both parties requested summary judgment in the case, but Baltimore City Circuit Court Judge Yolanda Tanner denied those motions.

This story has been updated.

smeehan@baltsun.com

twitter.com/sarahvmeehan

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