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Joseph Salek-Nejad and Nicole “Nikki” McGowan, operators of Pizza di Joey (pictured in 2017), filed a lawsuit over a Baltimore ordinance that prevents the owner of a food truck selling pizza from operating within 300 feet of a restaurant selling the same thing.
Joseph Salek-Nejad and Nicole “Nikki” McGowan, operators of Pizza di Joey (pictured in 2017), filed a lawsuit over a Baltimore ordinance that prevents the owner of a food truck selling pizza from operating within 300 feet of a restaurant selling the same thing. (By Matthew Cole / Capital Gazette)

On Thursday, Maryland’s highest court turned its attention to pizza. Specifically, whether a Baltimore ordinance that prevents the owner of a food truck selling pizza from operating within 300 feet of a restaurant selling the same thing, is constitutional.

Plaintiff Joseph Salek-Nejad, known professionally as Joey Vanoni, along with food truck operator Nicole “Nikki” McGowan first contested the rule in a 2016 lawsuit filed in Baltimore’s Circuit Court. Through his attorneys, Salek-Nejad argued the law violated his constitutional right to sling pizza through his food truck, Pizza di Joey. Faced with such restrictions, his lawyers said, Salek-Nejad left Baltimore altogether, taking his truck instead to Anne Arundel County.

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Salek-Nejad was represented Thursday by Robert Frommer of the Institute for Justice, an Arlington, Virginia-based law firm that has argued cases involving food trucks in Chicago, San Antonio and El Paso, Texas. Last year, Illinois courts upheld Chicago’s ban on any food truck within a 200 foot distance of a brick and mortar shop.

But Illinois’ constitution dates back only to the 1970s, Frommer told the red robed justices of Maryland’s Court of Appeals. In contrast, a historic article in Maryland’s centuries old constitution guarantees Marylanders the right to practice their trade. The provision, Article 24, he said, “existed before the United States was even a country.” Courts referred to it in a 1923 decision to overturn an ordinance that gave Havre de Grace residents the exclusive right to operate taxis in their city.

Asked whether a food truck parked near a brick and mortar restaurant could receive an economic boost by its proximity to the eat-in establishment, Frommer said the two businesses serve different needs. “Nobody is going to a food truck for a romantic Valentine’s Day dinner,” he said.

Frommer didn’t know when the court would release their decision. It will likely be the final word on the matter in Maryland. In December 2017, the Baltimore Circuit Court declared the ban too vague to be enforceable. But the Maryland Court of Special Appeals overturned that decision last year, calling the rule "classic economic regulation.”

In court filings, lawyers for Salek-Nejad cited an instance when a University of Maryland police officer approached the owner of Pizza di Joey after a complaint from a nearby deli. Salek-Nejad pulled up the ordinance on his laptop and told the officer he was not in violation. The officer eventually agreed with him and left, though he came back later that day to buy a slice of pizza.

That exchange “demonstrates that there is no threat of arbitrary enforcement,” said attorney Rachel Simmonsen, arguing on behalf of the city. She said the purpose of the 2014 restriction, which applies to all mobile vendors, is to “protect and promote the local economy as a whole.”

Simmonsen cited 2017 testimony from economist and expert witness Anirban Basu, who told Baltimore’s Circuit Court that food trucks could harm the business of restaurants and ultimately result in more vacant storefronts in places like downtown Baltimore, contributing to blight. Furthermore, Simmonsen said, the plaintiffs have failed to demonstrate “specific quantifiable financial harm" as a result of the law. She pointed to the continued presence of food trucks in the city. “The notion that the food trucks stopped vending in the city ... is not something that is borne out by the record.”

Today, Pizza di Joey occupies a stall in Federal Hill’s Cross Street Market. But Salek-Nejad said he would welcome any food truck selling pizza outside. He makes the best New York-style pizza around, he boasted, and, “If someone thinks they can go toe to toe with me, let them.”

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