Pizza Di Joey, LLC v. Mayor and City Council of Baltimore

Nazarian, J. ¹⁴⁹ Baltimore is home to over a thousand brick-and-mortar restaurants and about seventy licensed food trucks, including Pizza di Joey and Madame BBQ (collectively "the Food Trucks"). Baltimore City Code, Article 15, § 17-33, known colloquially as the "300-foot rule," prohibits mobile food vendors from conducting business within 300 feet of brick-and-mortar establishments that sell primarily the same kind of food. In October 2016, the Food Trucks sued the City in the Circuit Court for Baltimore City. They asked the court to declare that the 300-foot rule functionally prohibited them from operating in Baltimore City and, therefore, violated their rights under Article 24 of the Maryland Declaration of Rights.

The City countered that the rule did not prevent food trucks from thriving in Baltimore City and that the rule's location restrictions furthered the City's legitimate interest in supporting local brick-and-mortar businesses that had invested in Baltimore's commercial neighborhoods. After a trial, the circuit court found (using what it called "heightened rational basis review") that the 300-foot rule did not violate the Food Trucks' rights under Article 24, but that the ambiguities in the statutory language rendered it unconstitutionally vague. We hold that the ordinance should have been ¹⁵⁰ measured for rational ¹⁹⁰ basis, that it does not violate Article 24, and that it is not unconstitutionally vague. We affirm the circuit court's rulings on Article 24 and reverse the judgment enjoining the City from enforcing the rule.

I. BACKGROUND A. The 300-Foot Rule The Baltimore City Code regulates the places mobile food vendors can operate. One restriction, known as the "300-foot rule," has been around since the 1970s, but in its most recent form, which took effect on February 28, 2015, prohibits mobile vendors 1 from operating within 300 feet of a business that sells primarily the same food, merchandise, or service: 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 as that offered by the mobile vendor. Baltimore City Code, Art. 15, § 17-33. 2 A food truck that violates the 300-foot rule commits a misdemeanor. Baltimore City Code, Article 15, § 17-42.

Violators must pay a fine of $ 500, id. , and may also have their mobile vending licenses suspended or revoked. Baltimore City Code, Art. 15 § 17-44(a). If a licensee commits three violations ¹⁵¹ within a one-year period, revocation is mandatory. Baltimore City Code Art. 15 § 17-44(b).

And once a mobile vendor's license has been revoked, "the former licensee may not apply for a new license until at least 1 year from the date of revocation." Baltimore City Code, Art. 15, § 17-44(c). A number of City agencies, including the Department of Transportation, the Department of General Services, the Baltimore City Police Department, and the University of Maryland Police, enforce the 300-foot rule. 3 Aside from the text of the rule itself, no guidelines elaborate on how the rule should be enforced or define the phrases "primarily engaged in" or "same type of food product" with any further precision. Although these penalties have been on the books since 2015, no vendor has received a citation or had a license suspended for violating the 300-foot rule. Instead, when mobile vendors violate the rule, the City's enforcement authorities ask them to relocate or to alter their menus according to what brick-and-mortar establishments are nearby.

Enforcement authorities initiate these measures only in response to a complaint that a food truck is parked too close to a brick-and-mortar business. B. The Food Trucks Pizza di Joey is a Maryland-based limited liability company and a mobile vendor ¹⁹¹ licensed in Baltimore City. See Baltimore City Code, Art. 15, § 17-1. Pizza di Joey is an Italian kitchen on wheels, complete with 4000-pound brick pizza oven, and has sold "authentic New York style brick oven pizza, as well as some Italian pastas and salad" since 2014.

The "Joey" of Pizza di Joey is its owner and founder, Joseph Salek-Nejad, known professionally as Joey Vanoni. 4 Pizza di Joey is open for business several afternoons per week. Although Mr. Vanoni had intended his "center for business operation" to be Baltimore ¹⁵² City, he now operates in Anne Arundel County the vast majority of the time, purportedly as a result of the prohibitive nature of the 300-foot rule. Pizza di Joey has never been cited for violating the 300-foot rule, but was approached once by law enforcement in 2015 in response to a brick-and-mortar restaurant's complaint. Pizza di Joey was setting up for lunch service on the 800 block of West Baltimore Street when a University of Maryland Police officer approached and told Mr. Vanoni that a nearby deli had complained that he was parked too close.

Mr. Vanoni explained to the officer that because the deli did not serve pizza, he understood that he was permitted to park his truck nearby without violating the 300-foot rule. The officer was not familiar with the particulars of the rule, so Mr. Vanoni pulled up the text of § 17-33 on his laptop and showed it to him. The officer agreed after reviewing the rule that there was no violation and went on his way. Beyond selling the same officer a slice of pizza later that day, that one encounter represented all of Pizza di Joey's interactions with enforcement authorities relating to the 300-foot rule.

Madame BBQ is a Maryland-based limited liability company founded in the summer of 2014. In 2016, Madame BBQ rebranded its food truck as MindGrub Café and shifted from selling barbeque to more health-conscious cuisine, self-described as "brain food for knowledge workers." Madame BBQ is owned by Nicole McGowan, who has worked in the food service industry since she was fifteen. When Ms. McGowan began operating Madame BBQ in 2014, she conducted most of her business in Howard County. At that time, she was not a licensed mobile vendor in Baltimore City and only took her truck there occasionally through one-day permits for block parties and special events.

At the time of trial, Ms. McGowan was in the process of relocating "the focus of [her] operations" to Baltimore City, where she would ideally like to sell lunch from her truck on weekday afternoons. She is now licensed in Baltimore City. ¹⁵³ Madame BBQ has never been cited for violating the 300-foot rule and has never had any encounter with enforcement agencies. But the rule is so prohibitive, Ms. McGowan claims, that she does not take her truck out in Baltimore City because there is nowhere she feels she can serve lunch that doesn't "make [her] afraid to get a citation or lose [her] license." C. The Lawsuit Pizza di Joey and Madame BBQ filed this action in the Circuit Court for Baltimore City on May 11, 2016. They alleged that the 300-foot rule violated their rights to equal protection and due process under Article 24 of the Maryland Declaration of Rights, both on its face and as applied.

The Food Trucks sought a declaratory judgment stating the 300-foot rule was unconstitutional and a permanent injunction against its enforcement. The City filed a Motion to Dismiss the complaint, which was denied. The parties' cross-motions for ¹⁹² summary judgment were also denied and the case was set for trial. The trial lasted two days and included testimony from Mr. Vanoni, Ms. McGowan, and Anirban Basu, an expert witness offered by the City who testified about the impact of food trucks on brick-and-mortar businesses and the economic viability of commercial neighborhoods.

The Food Trucks' owners' depositions also were admitted into evidence, along with the depositions of two City employees deposed as its representatives-Gia Montgomery of the Department of Transportation, who testified that she was the person most qualified to speak authoritatively on mobile vending licensure and regulation enforcement, and Babila Lima of the Department of General Services ("DGS"), who drafted both the 300-foot rule and the materials posted to the DGS website offering guidance on the mechanics of mobile vending regulations. Mr. Vanoni testified that the 300-foot rule has essentially driven him out of Baltimore City, contrary to his original intention to make Baltimore the center of his business. He explained that the rule is "extremely limiting on my business' ¹⁵⁴ ability to successfully operate.... I've been compelled to operate outside the City which is not what I intended.

I'd like to operate [in Baltimore]." He claimed that the 300-foot rule prohibited him from operating in the Baltimore neighborhoods where his business was most likely to succeed, such as Hampden: MR. VANONI: It's a great area. It's [an] up and coming neighborhood here in Baltimore. I've got some friends that live up there.

They bought some homes there and it's kind of like a culinary incubator.... It's upbeat. It's fun. And it's a cool place to hang out.

PIZZA DI JOEY'S COUNSEL: What steps did you take to analyze the effect of the 300-foot rule and your ability to operate in the Hampden area? MR. VANONI: I got a list of all the restaurants in the area and I took evaluation of their menus and compared their menus trying to look for any conflicts with regards to this 300-foot rule. Then I shortened my list, went to Hampden and walked the streets verifying their locations with a map I had and the list I created.

PIZZA DI JOEY'S COUNSEL: And about how many restaurants did you identify that concerned you? MR. VANONI: Hampden, it was 12. PIZZA DI JOEY'S COUNSEL: And in identifying those 12 what conclusions did you draw about your ability to operate in Hampden?

MR. VANONI: I couldn't operate there successfully. In addition to Hampden, Mr. Vanoni expressed concern about taking his truck to Federal Hill, Harbor East, Canton, and Fells Point. Mr. Vanoni also testified about his encounter with the University of Maryland Police, and explained that it caused him to reevaluate and ultimately change his business plan: PIZZA DI JOEY'S COUNSEL: What were the lessons you drew from your experience with the University of Maryland police officer? ¹⁵⁵ MR.

VANONI: That this law's enforced, that on any given day I could be approached and, you know, I don't want to sound like I'm so important, but I operate my business and I'm on the truck. So when somebody's occupying my time I can't prep. It gave me great pause and concern for operating because I can go here and, you know, even though I could be completely in the right I have to sit here and argue my case every day with ¹⁹³ an enforcement officer whatever uniform they're wearing or out of uniform and that takes up time from operating. I start off the day normally by myself until my staff arrives, so it's kind of precious time. * * * PIZZA DI JOEY'S COUNSEL: Were you more concerned about the 300-foot rule after this incident?

MR. VANONI: Absolutely. I realized it wasn't[,] not that I took it lightly[,] but it definitely wasn't a law to take lightly or an order to take lightly not that I really do take laws lightly, but I realize that it was enforced and kind of like, you know, just kind of reiterating what I said before on any given day I could go out there and try to operate and potentially be approached by somebody who is trying to just call on a complaint. They're doing their job.

I get that. I'm not in the habit of, you know, getting into argument with law enforcement officers. So yeah, it definitely raised my level of concern. Ms. McGowan expressed similar concerns in her testimony.

She said that the 300-foot rule placed entire neighborhoods off limits to MindGrub Cafe, particularly Federal Hill, Hampden, Harbor East, Downtown, Locust Point, and Woodberry. She also shared Mr. Vanoni's concerns about profits she lost as result of time spent justifying her truck's presence to law enforcement: MADAME BBQ'S COUNSEL: [D]oes your concern about the 300 foot rule influence where you decide to set up? MS. MCGOWAN: Yes, it does.

MADAME BBQ'S COUNSEL: How so? ¹⁵⁶ MS. MCGOWAN: I definitely don't take my truck out very often, because I'm fearful of where I can park. I haven't found any places that are not--that don't make me afraid to get a citation or lose my license. * * * [A]s we heard from Joey, you know, all of this takes time. And to try to have to, you know, prove your case, you know, whenever you go out, and the fear of having to prove your case - you know, if someone comes up and says, "[y]ou need to prove you are not in violation." That all takes time.

I mean, lunch service is not very long. The City's expert, Anirban Basu, testified at length about the problems food trucks present to brick-and-mortar eateries and how the 300-foot rule might address those concerns. Mr. Basu is CEO of an economic and policy consultancy that has represented many Baltimore businesses, developers, and agencies. He co-authored an economic development strategy for Baltimore City, and was consultant for the developers of Harbor East, Harbor Point, and Port Covington.

Mr. Basu testified that vacancies in commercial neighborhoods affect both public safety and the commercial viability of Baltimore neighborhoods: MR. BASU: I really believe that commercial vacancies are very injurious in terms of creating an environment not conducive to public safety.... If [people] see a lot of vacant space they see a lot of hopelessness. Often vacant space associated with deteriorating physical conditions of buildings.

That also sends out signals to people. And people often respond with their behaviors to those signals. So what you want is very vibrant commercial districts ... low vacancy rate.... CITY'S COUNSEL: And based on your economic knowledge ... do vacancies make it more difficult to attract new businesses to those areas? ¹⁹⁴ MR.

BASU: Oh yes, they do. And [ ] that's because again it sends a signal to potential tenants that this may not be the place for them.... [O]ne of the things you tend to see in ¹⁵⁷ commercial real estate is that an area that has suffered high vacancy often continues to suffer high vacancy.... So vacancy breeds vacancy. And it's very difficult once a commercial area stops being vibrant to bring that vibrancy back.

And we see that throughout Baltimore. Mr. Basu described the different contributions that brick-and-mortar restaurants and food trucks make to the City: CITY'S COUNSEL: How are [food trucks'] contributions to a commercial district different from the contributions that you testified that restaurants contribute to a commercial district? MR. BASU: Restaurants are semi-permanent members of their community....

Food trucks by definition are mobile. They're not affixed to a particular community. They're not necessarily pillars of their community. And of course they're not in brick and mortar context.

And so they're not generating property taxes, directly or indirectly, the way that a restaurant would. He also addressed the disparity in financial investment, and the corresponding disparity in risk, between brick-and-mortar restaurants and food trucks: MR. BASU: ... based on the parameters I found from various industry publications, [ ] it's reasonable to conclude that a typical restaurant entrepreneur is investing and, therefore, risking about four times as much money as is a food truck entrepreneur. Both are taking risks.

Both are to be respected for taking those risks. It's wonderful. But the restaurateur on average is making a much larger gamble financially than is a typical food truck entrepreneur. He explained that in addition to the greater financial investment and corresponding impact on the local economy, brick-and-mortar entrepreneurs make a long-term commitment to the communities in which they operate.

They provide tenancy, which increases property values, enter long-term leases, provide employment in greater numbers, and, most importantly, cannot pack up and leave easily. Food trucks, conversely, are able to "cherry pick" hours and locations to optimize profits ¹⁵⁸ without committing to any particular neighborhood. If a neighborhood they frequent experiences crime or heavy construction, or anything else that might deter customers from returning, food trucks can drive their business to a more desirable location. And by setting up directly beside a brick-and-mortar competitor, food trucks take advantage of the environment created by the restauranteurs' investments while siphoning off a portion of the business that their competitors have worked to generate.

Mr. Basu testified that these dynamics did not "strike [him] as fair competition and it very much [struck him] as a free rider problem." Mr. Basu opined that the 300-foot rule addressed the problem of unfair competition between the two business types "very strongly": My conclusion is very firmly that [the 300-foot] rule enures to the benefit of the people of Baltimore and to the benefit of the level of commercial transactions that will take place in this city over the long term that it supports entrepreneurship and that it supports street-level vitality. After the trial concluded, the court took the case under advisement, then issued a written Memorandum and Order on December 20, 2017. After finding that the 300-foot rule was not unconstitutional per se , the court considered the appropriate standard for measuring the Food Trucks' ¹⁹⁵ Article 24 claims. The court applied "heightened rational basis" scrutiny and found that the rule was not unconstitutional under that standard: Applying the heightened rational standard of review to the 300 foot rule this Court concludes that this provision is not unconstitutional because it (1) protects the contributions brick-and-mortar retail establishments make to the City's commercial districts; (2) promotes entrepreneurial investments and opportunity by eliminating the potential risks of food trucks; and (3) diversifies the marketplace to maximize positive economic effect by creating meaningful choices for the consumer.

The 300-foot rule promotes brick-and-mortar establishments throughout the City by eliminating the threat of mobile vendors, and ensuring brick-and-mortar establishments become a permanent fixture in the City. ¹⁵⁹ Promoting brick-and-mortar restaurants provides jobs, property tax revenues, and prevents a growing number of vacant properties. The commercial district of this City is dependent on these brick-and-mortar establishments' long-term real estate investments. The City's economic vitality is dependent upon the flourishment of its commercial district. As stated in [ Attorney General v. ] Waldron , [ 289 Md. 683 , 426 A.2d 929 (1981) ], a State may enact regulations that may be burdensome on an individual's right to engage in their choice of occupation, as long as that regulation is required for the protection of the public health, safety, and morals.

This Court agrees that the vitality of commercial districts is dependent upon the success of brick-and-mortar establishments, which promotes a successful economy. The 300-foot rule serves the legitimate purpose of promoting the City's general welfare by establishing a 300-foot distance between brick-and-mortar establishments and mobile vendors. The City is entitled to protect the general welfare by ensuring the vibrancy of commercial districts. Thus, this Court declares that Baltimore City Code, Article 15, Section 17, et seq. , is constitutional and does not infringe on the [Food Trucks'] Due Process and Equal Protection rights.

Although there was some uncertainty about whether the Food Trucks had challenged the rule on vagueness grounds-as we detail later, their complaint didn't include a vagueness claim, and they alternately disclaimed and embraced the theory at different times during the trial and closing arguments-the court determined that they had raised both a facial and as-applied vagueness challenge and concluded that the 300-foot rule was unconstitutionally vague in two ways. First , the court found that the phrases "primarily engaged in" and "same type of food product" left the parties without fair notice of the rule's scope and how the City would enforce it. Second , the court found that "the entities enforcing this ordinance do not have guidance as to how to measure the 300-foot distance between bricks-and-mortar establishments and food trucks." As a result, the court granted the Food Trucks' request for ¹⁶⁰ injunctive relief and enjoined the City from enforcing the 300-foot rule. The order stayed the injunction for sixty days, but the stay expired on February 19, 2018, and the injunction went into effect.

The circuit court denied motions to reconsider and to stay, and this Court denied a motion to stay the injunction as well. The Food Trucks, notwithstanding their victory, appealed the circuit court's decision finding no violation of their due process or equal protection rights, and the City cross-appealed.

II

DISCUSSION At the threshold, we consider, and reject, the City's contention that the Food ¹⁹⁶ Trucks have not presented a justiciable controversy under the Declaratory Judgment Act. From there, we move to the merits: we hold that rational basis is the appropriate level of constitutional scrutiny to apply in reviewing the 300-foot rule, we find that standard met, and we hold that the circuit court erred in finding the rule void for vagueness. A. The Food Trucks Presented A Justiciable Controversy Under The Declaratory Judgment Act. The Mayor and City Council argue that the Food Trucks "failed to present an action that was ripe under the meaning of the declaratory judgments act." Because neither of the Food Trucks has been cited for violating the 300-foot rule, and because there is no guarantee that they ever will be, the City reasons that the Food Trucks "have merely presented an issue that exists in the abstract," and the circuit court should have dismissed the case.

We disagree and find that the Food Trucks have alleged a justiciable controversy under the declaratory judgment act. 5 The declaratory judgment act provides that "a court may grant a declaratory judgment or decree in a civil case, if ¹⁶¹ it will serve to terminate the uncertainty or controversy giving rise to the proceedings, and if an actual controversy exists between contending parties." Md. Code (1974, 2013 Repl. Vol.) § 3-409(a)(1) of the Courts and Judicial Proceedings Article ("CJ"). 6 But a court cannot consider a declaratory judgment action unless the underlying controversy is justiciable. State Center, LLC v. Lexington Charles Ltd. P'ship , 438 Md. 451 , 591, 92 A.3d 400 (2014) ; Hatt v. Anderson , 297 Md. 42 , 45, 464 A.2d 1076 (1983) ("the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action"). Among the "numerous hurdles" to justiciability is ripeness.

State Center , 438 Md. at 591 , 92 A.3d 400 ( quoting Boyds Civic Ass'n v. Montgomery Cty. Council , 309 Md. 683 , 690, 526 A.2d 598 (1987) ). "Under the ripeness doctrine as applied to actions for declaratory relief, a case ordinarily is not ripe if it involves a request that the court declare the rights of parties upon a state of facts which has not yet arisen or upon a matter which is future contingent and uncertain." Stevenson v. Lanham , 127 Md. App. 597 , 612, 736 A.2d 363 (1999) (cleaned up). But because one of the primary purposes of the declaratory judgment act is to "relieve litigants of the rule of the common law that no declaration of rights may be judicially adjudged unless a right has been violated," ripeness in this context "can become an elusive concept." Boyds Civic Ass'n , 309 Md. at 691 , 526 A.2d 598 ( quoting Davis v. State , 183 Md. 385 , 388, 37 A.2d 880 (1944).

The City argues that the Food Trucks had not "allege[d] and prove[n] that they have been prosecuted ... or that there is a credible threat of prosecution under [the] contested statute." State v. G & C Gulf, Inc. , 442 Md. 716 , 732, 114 A.3d 694 (2015). And a credible threat of prosecution is ordinarily a prerequisite to a declaratory judgment action challenging a penal statute. The mere existence of a criminal ¹⁶² statute does not generally create "such a threat as to present a justiciable controversy." Id. at 731 , 114 A.3d 694 . And it's true that neither Pizza di Joey nor ¹⁹⁷ Madame BBQ faced imminent prosecution when they brought this case before the circuit court.

But if the Food Trucks' only opportunity to challenge the 300-foot rule's constitutionality arises when they are issued a citation, that opportunity is unlikely ever to arise because the City and its enforcement agencies do not enforce the 300-foot rule by pursuing any of the penal consequences authorized by the Baltimore City Code. Violations of the 300-foot rule are misdemeanors, but the rule doesn't operate like a typical penal statute. When considering a statute's constitutionality, we are more concerned with its substance than its label, and so too when we assess the ripeness of the Food Trucks' challenge here. Although designated a misdemeanor, the 300-foot rule is, in substance and application, a local economic regulation.

The primary injury the Food Trucks allege is not the possibility of prosecution, which the Court of Appeals has rejected as non-justiciable, see, e.g. , G & C Gulf, Inc. , 442 Md. at 732 , 114 A.3d 694 , but the loss of their right to pursue a business opportunity in their chosen profession, an interest that qualifies readily as a basis for a declaratory judgment. See, e.g. , Bruce v. Dir., Dep't. of Chesapeake Bay Affairs , 261 Md. 585 , 595, 276 A.2d 200 (1971) ( quoting Davis , 183 Md. at 389 , 37 A.2d 880 ) ("[I]n this case complainant is affected by the [statute] and he is entitled to apply for declaratory judgment under the uniform act, rather than run the risk of being subjected to criminal prosecution."); Oyarzo v. Md. Dep't of Health and Mental Hygiene , 187 Md. App. 264 , 275, 978 A.2d 804 (2009) ("[T]he right [the challenger] seeks to protect is the right to pursue a business opportunity.... There is no need for [him] to violate the challenged regulation in order for us to consider whether it was within the scope of the Department's authority to adopt [the regulation at issue]."). As licensed mobile vendors in Baltimore City, Pizza di Joey and Madame BBQ are indisputably limited in their ¹⁶³ business if the 300-foot rule survives.

The rule restricts where they can sell and affects their potential profitability. Although the City characterizes this controversy as purely abstract and theoretical, its contours are visible: the 300-foot rule requires mobile vendors to keep their distance from direct brick-and-mortar competitors, in ways we can measure and draw on maps (as the parties have). The Food Trucks abided by the restrictions while they were in effect, but they contend that the rule violates their rights under Article 24 of the Maryland Declaration of Rights and injures their business interests. Given the remedial nature of the declaratory judgment act and the general principle that it is to be "liberally construed and administered," Boyds Civic Ass'n , 309 Md. at 688 , 526 A.2d 598 , we find the Food Trucks' claims sufficiently "concrete and specific" to generate a controversy that is ripe for review.

Hatt , 297 Md. at 46 , 464 A.2d 1076 . B. The 300-Foot Rule Is A Constitutional Exercise Of The City's Police Power. The Food Trucks argue that the 300-foot rule "violated their rights to equal protection and substantive due process both on its face and as applied" under Article 24 of the Maryland ¹⁹⁸ Declaration of Rights. 7 Article 24 of the Maryland Declaration of Rights encompasses both of these protections: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. ¹⁶⁴ Although Article 24 does not contain an express equal protection clause, our courts long have recognized that "the concept of equal protection nevertheless is embodied in the Article." Renko v. McLean , 346 Md. 464 , 482, 697 A.2d 468 (1997) ; see also Tyler v. City of Coll. Park , 415 Md. 475 , 499, 3 A.3d 421 (2010).

Article 24 equal protection doctrine and federal equal protection doctrine are "complementary but independent." Verzi v. Balt. Cty. , 333 Md. 411 , 417, 635 A.2d 967 (1994). We consider U.S. Supreme Court decisions interpreting the federal equal protection clause persuasive but not controlling, and we may find a discriminatory classification unconstitutional for failing to provide equal protection under Article 24 alone. Attorney Gen. of Md. v. Waldron , 289 Md. 683 , 715, 426 A.2d 929 (1981).

The Food Trucks characterize the 300-foot rule as a baseless and discriminatory restriction on mobile vendors in Baltimore City, one that functionally prohibits them from operating their businesses in some of Baltimore's most commercially desirable neighborhoods. As they seek to frame it, the rule infringes on their important personal right to practice their chosen trade, and they urge us to find that the 300-foot rule is invalid on its face and in its application to mobile vendors in Baltimore City. In reality, the 300-foot rule is classic economic regulation, one with a fairly narrow scope grounded in an entirely rational basis. The rule doesn't prohibit mobile vendors from operating in any particular area of Baltimore City.

It simply requires each vendor to maintain a distance of 300 feet (roughly one Baltimore block) from its direct brick-and-mortar competitors. The rule is designed, according to the City and its trial witnesses, to address the "free-rider" 8 problem that arises when mobile vendors set up shop near brick-and-mortar restaurants ¹⁶⁵ that have made a comparatively greater economic investment, and attract the customer base that mobile vendors then solicit (and, ideally, convert). With these dual framings in mind, we assess the Food Trucks' arguments, apply rational basis review, and hold that the 300-foot rule passes constitutional muster under Article 24. 1. The 300-Foot Rule is not per se unconstitutional.

A facial constitutional challenge attacks the legislation in question as unconstitutional per se. To prevail on a facial challenge, the "party challenging the facial validity of a statute 'must establish that no set of circumstances exist under which the Act would be valid.' " Koshko v. Haining , 398 Md. 404 , 426, 921 A.2d 171 (2007) ( quoting U.S. v. Salerno , 481 U.S. 739 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) ). An as-applied challenge, conversely, "claim[s] that a statute is unconstitutional on the facts of a particular case or in its ¹⁹⁹ application to a particular party." Motor Vehicle Admin. v. Seenath , 448 Md. 145 , 181, 136 A.3d 885 (2016) ( citing As-Applied Challenge , BLACK'S LAW DICTIONARY (10th ed. 2014)). Facial constitutional challenges are generally disfavored because they carry the risk of "premature interpretation of statutes on the basis of factually barebones records." Sabri v. United States , 541 U.S. 600 , 609, 124 S.Ct. 1941 , 158 L.Ed.2d 891 (2004) (cleaned up).

The Food Trucks argue that the 300-foot rule is unconstitutional on its face because the rule's "anti-competitive ends and [ ] economic favoritism" misuse the City's police power. They claim that "[f]or almost a century, the Court of Appeals has invalidated discriminatory laws that use public power to generate private gain" and has "repeatedly held that the police power should not be used for such anti-competitive ends, and that economic favoritism is wholly illegitimate." But they cite no cases, and we have not found any, in which this Court or the Court of Appeals struck down an economic regulation based on a facial challenge. The cases on which they rely for these propositions were all decided on a review of the challenged statutes as applied to the plaintiffs in each ¹⁶⁶ case. See Verzi , 333 Md. at 411 , 635 A.2d 967 ; Bruce , 261 Md. at 585 , 276 A.2d 200 (1971) ; Md. State Bd. of Barber Exam'rs v. Kuhn , 270 Md. 496 , 312 A.2d 216 (1973).

Moreover, there is support in Maryland case law for constitutionally valid economic regulations targeted at curbing unfair competition. See, e.g. , Salisbury Beauty Schools v. State Bd. of Cosmetologists , 268 Md. 32 , 56, 300 A.2d 367 (1973). We agree with the circuit court that the 300-foot rule is not unconstitutional per se . 2. The 300-foot rule is subject to Article 24 rational basis review.

"[W]hen a statute creates a distinction based upon clearly 'suspect' criteria, or when [it] infringes upon personal rights or interests deemed to be 'fundamental,' " that statute is subject to strict scrutiny. Waldron , 289 Md. at 705 , 426 A.2d 929 . A statute that triggers strict scrutiny is presumptively unconstitutional and survives only if the government can demonstrate that the challenged statute is "necessary to promote a compelling government interest." Waldron , 289 Md. at 705 -06 , 426 A.2d 929 ( quoting Dunn v. Blumstein , 405 U.S. 330 , 342, 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972) ( quoting Shapiro v. Thompson , 394 U.S. 618 , 634, 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969) )); Koshko , 398 Md. at 438 , 921 A.2d 171 . But where, as here, the statute doesn't discriminate based on a suspect classification, i.e. , when the statute does not differentiate based on race, religion, alienage, or national origin, and when no fundamental, enumerated constitutional right is implicated, it is subject to highly deferential, rational basis review. 9 Frey v. Comptroller of Treasury , 422 Md. 111 , 163, 29 A.3d 475 (2011). ¹⁶⁷ Both sides seem to agree that we should apply rational basis review to the 300-foot rule-and so do we-but they articulate significantly different visions of what that scrutiny entails.

The City advocates for "deferential rational basis review" that recognizes the City's "wide discretion in determining what the public ²⁰⁰ welfare requires and is free to adopt economic regulations so long as it has a rational basis to believe those regulations are appropriate to protect and promote that welfare." The City recognizes correctly (as we explain below) that under certain circumstances, a more searching inquiry is required, but argues that the 300-foot rule does not call for anything more than the most deferential standard. The Food Trucks advocate for a version of rational basis that they call "the real-and-substantial test," a test that is "far more probing than the cursory examination called for by the City." But the Food Trucks don't provide a clean definition or a single origin for their proposed standard, and after a thorough review of our case law, we can understand why-over many years of Maryland Constitutional jurisprudence, the standards of scrutiny and the language used to describe those standards have become muddled. The lack of clarity is a natural side effect of doctrinal evolution. As courts apply constitutional standards to novel situations in changing times and incorporate, to varying degrees, federal constitutional principles into our State law, language that once seemed clear can become a source of confusion and disagreement.

It has in this case. Our review of the law on which the Food Trucks rely reveals that their proposed "real-and-substantial test" derives from two theories of enhanced Article 24 scrutiny. The Food Trucks rely first on a standard derived from a now-defunct theory of economic substantive due process, 10 and second from ¹⁶⁸ the