Pizza di Joey v. Mayor & City Cncl. of Balt.

Pizza di Joey, LLC and Madame BBQ, LLC v. Mayor and City Council of Baltimore, No. 41, September Term, 2019. Opinion by Biran, J. JUDICIAL REVIEW – DECLARATORY JUDGMENT ACT – JUSTICIABILITY – RIPENESS – STANDING – Court of Appeals held that mobile vendors’ substantive due process and equal protection claims were justiciable in a declaratory judgment action brought under Md. Code, Cts. & Jud. Proc. § 3-409(a)(1) (1973, 2013 Repl. Vol.).

Mobile vendors’ challenge to Baltimore City Code, Article 15, § 17-33, which prohibits them from parking their food trucks within 300 feet of a competing retail establishment (“300-foot rule”), was ripe. Enforcement of the 300-foot rule restricts where mobile vendors may operate and affects their potential profitability, resulting in concrete, specific claims of constitutional violations. The Court also held that the mobile vendors in this case had standing to challenge the 300-foot rule. They established at trial that they were directly affected by the 300-foot rule.

MARYLAND DECLARATION OF RIGHTS – ARTICLE 24 – EQUAL PROTECTION – SUBSTANTIVE DUE PROCESS – BALTIMORE CITY CODE, ARTICLE 15, § 17-33 – RATIONAL BASIS REVIEW – Court of Appeals held that the proper level of judicial scrutiny for the 300-foot rule is rational basis review. The Court held that the 300-foot rule is rationally related to Baltimore City’s legitimate interest in ensuring the economic vibrancy of its commercial districts. The 300-foot rule furthers this interest by addressing the “free rider” problem that exists when food trucks are able to park too close to restaurants that primarily sell the same type of food products. Thus, the Court held that the 300-foot rule does not violate mobile vendors’ rights to substantive due process and equal protection under Article 24 of the Maryland Declaration of Rights.

Even reviewed under the less deferential heightened rational basis test, the 300-foot rule is constitutional because it bears a real and substantial relation to Baltimore’s legitimate interest in ensuring the vibrancy of its commercial districts. COURTS – WAIVER – APPELLATE REVIEW – Court of Appeals held that, where mobile vendors affirmatively waived vagueness challenge, circuit court erred in holding the 300-foot rule void for vagueness on its own initiative. An appellate court has discretion to give effect to a party’s affirmative waiver of a claim for relief in the trial court, despite the trial court having decided the question on its own initiative. MARYLAND DECLARATION OF RIGHTS – ARTICLE 24 – VOID-FOR- VAGUENESS DOCTRINE – FACIAL CHALLENGE – The Court of Appeals held that a facial vagueness challenge to the 300-foot rule is permissible.

On the merits of that claim, the Court held that the 300-foot rule is not void for vagueness. Mobile vendors failed to show that there is no set of circumstances under which the 300-rule is valid. In addition, the language of the 300-foot rule is not so broad as to be susceptible to irrational and selective enforcement. Circuit Court for Baltimore City Case No. 24-C-16-002852 Argued: February 6, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 41 September Term, 2019 PIZZA DI JOEY, LLC AND MADAME BBQ, LLC v. MAYOR AND CITY COUNCIL OF BALTIMORE McDonald Watts Hotten Getty Booth Biran Raker, Irma S.

(Senior Judge, Specially Assigned), JJ. Opinion by Biran, J. Pursuant to Maryland Uniform Electronic Legal Materials Act Raker, J., dissents. (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-11 14:47-05:00 Filed: August 17, 2020 Suzanne C. Johnson, Clerk “There ain’t no such thing as a free lunch.” – adage popularized as the acronym “TANSTAAFL” in The Moon Is a Harsh Mistress by Robert A. Heinlein (1966) According to one scholar, in nineteenth-century America, “cities were regarded almost purely as economic entities.” Dennis R. Judd, The Politics of American Cities: Private Power and Public Policy 2 (1979). Thus, in that era, “[l]ocal politics could be defined as the enterprise of protecting and promoting economic vitality.” Id.

In modern America, Baltimore City and other local governments have had more on their plates when promoting the general welfare than just ensuring economic vitality. In 2020, the coronavirus pandemic and concerns about racism in policing have dominated civic discourse in Maryland and throughout the nation. In Baltimore City, policymakers and concerned citizens have confronted issues relating to equality and policing (and other social issues) for many years prior to this one. Nevertheless, promoting and maintaining economic strength remains an important governmental interest in Baltimore and other cities.

Without economic strength, cities struggle to remain vibrant, as tax bases shrink and public safety challenges increase. Promoting a city’s general welfare requires that local lawmakers balance competing interests and make sometimes difficult choices. This case concerns Baltimore City’s efforts to balance the interests of brick-and-mortar restaurants and food trucks. Joseph Salek-Nejad, known professionally as Joey Vanoni, and Nicole McGowan are the respective owners of Pizza di Joey, LLC (“Pizza di Joey”) and Madame BBQ, LLC (“Madame BBQ”).

Since 2014, both Pizza di Joey and Madame BBQ have been part of Maryland’s food truck industry, with Pizza di Joey primarily operating in Anne Arundel County and Madame BBQ (rebranded in 2016 as MindGrub Café) in Howard County. Pizza di Joey and Madame BBQ (collectively, the “Food Trucks”) seek to operate in Baltimore City, but contend that they are unable to do so due to a provision in Baltimore’s street vending ordinance that restricts a food truck from parking within 300 feet of a brick- and-mortar restaurant that primarily sells the same type of food (the “300-foot rule” or the “Rule”). The Food Trucks filed suit in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (the “City”), claiming that the 300-foot rule violates Article 24 of the Maryland Declaration of Rights by restricting the Food Trucks’ ability to practice their trade. Specifically, the Food Trucks alleged that the 300-foot rule’s restraint on their ability to operate their businesses in Baltimore deprives them of equal protection and substantive due process of law under Article 24.

At a bench trial, the City introduced expert testimony from an economist, who testified that the 300-foot rule addresses a “free rider” problem posed by food trucks siphoning business from brick-and-mortar restaurants after those restaurants have invested their resources and become semi-permanent members of the neighborhoods in which they are based. The City’s expert testified that, while food trucks provide an important service, they threaten the vibrancy and viability of the City’s commercial districts if allowed to operate too closely to brick-and-mortar establishments that sell primarily the same type of food. 2 After receiving evidence from both sides, the circuit court held that the 300-foot rule does not violate Article 24’s requirements of equal protection and substantive due process. However, despite the Food Trucks’ explicit disavowal of a claim based on the procedural due process doctrine of vagueness, the court enjoined the City from enforcing the 300-foot rule, concluding on its own initiative that the Rule is impermissibly vague. The parties cross-appealed to the Court of Special Appeals, which ruled in favor of the City.

The intermediate appellate court agreed with the circuit court that the 300-foot rule does not deprive the Food Trucks of substantive due process or equal protection under Article 24. However, the Court of Special Appeals reversed the circuit court’s grant of injunctive relief, holding that the Food Trucks had not preserved a vagueness claim for appellate review, and that such a claim failed on the merits in any event. The Food Trucks appealed to this Court. For the reasons discussed below, we agree with the Court of Special Appeals that the 300-foot rule is constitutional.

I Background A. Food Trucks Not every city has had the same experience with food trucks over the past decade. In some cities, the emergence of food trucks has been viewed as a wholly positive development. In other cities, the relationship between food trucks and established businesses and the local citizenry has been more complicated. But there is no doubt that food trucks have become increasingly popular and prevalent in Baltimore and many other American cities over the past decade. 3 However, the idea behind a kitchen on wheels is not novel.

In 1866, Charles Goodnight repurposed a military wagon into a mobile kitchen for cattle farmers traveling along Western trails. See Clay Coppedge, Good Eats on the Range, available at http://www.americanchuckwagon.org/images/CWarticle.pdf (accessed on July 15, 2020), archived at https://perma.cc/YLU6-6L66. Known as the chuck wagon, its popularity and uses expanded over the following century. After enjoying a steak at an event in Colorado, former President Theodore Roosevelt mounted a chuck wagon and spoke of the “great comfort” they provided on the frontier.

At the “Chuck Wagon Lunch”, Baltimore Sun (Aug. 30, 1910). In the 1930s, a “restaurant on wheels” could travel to different destinations at a moment’s notice. “Old Hutch” Feeds Famous Folk: Restaurant on Wheels is Site of Many Quick Repasts in Wilds, Washington Post (Aug. 9, 1936). In 1949, a restaurant in Little Rock, Arkansas styled a Jeep after a chuck wagon and used it to cater parties and events. Chuck Wagons Roll Again, Wall Street Journal (Mar. 14, 1949).

The mobile food industry took a different form in cities. Vendors have sold food from pushcarts in New York City for hundreds of years. See The Complete History of American Food Trucks, available at http://www.mobile-cuisine.com/business/history-of- american-food-trucks (accessed on July 13, 2020), archived at https://perma.cc/FWR3- RARW. In 1872, Walter Scott cut windows into a wagon parked outside an office in Providence, Rhode Island, from which he sold sandwiches and coffee.

Similar “lunch wagons” began to appear in other cities. Devin Gannon, From oysters to falafel: The complete history of street vending in NYC, available at http://www.6sqft.com/from-oysters- to-falafel-the-complete-history-of-street-vending-in-nyc (accessed on July 13, 2020), 4 archived at https://perma.cc/P468-FQGG. Near the end of the nineteenth century, nighttime food wagons, known as “Owls,” appeared in New York City, serving hot food and drinks after restaurants closed. Id.

After the advent of the automobile, food wagons eventually became motorized. Id. The person widely credited with creating the first of today’s modern “food trucks” was Raul Martinez, who, in 1974 in Los Angeles, converted an old ice cream truck into a mobile lunch wagon serving tacos. See Lynn Brown, The Rise of the Taco Truck, available at https://daily.jstor.org/rise-of-the-taco-truck (accessed on July 13, 2020), archived at https://perma.cc/D6JW-ZGWX.

Six months later, thanks to the popularity of his truck, Mr. Martinez was able to open a brick-and-mortar restaurant called King Taco in Los Angeles, which became a successful chain of restaurants. Mr. Martinez’s success led others to try to follow in his footsteps, and “taco trucks” became common in California and the Southwest. Id. One of the first gourmet food trucks to receive national attention was Kogi BBQ in Los Angeles, which used Twitter to develop a fan base for its “Korean Short Rib Taco” and other Korean-Mexican fare.

Id.; see also David Farley, The taco that’s taking the US by storm, available at http://www.bbc.com/travel/story/20150130-the-taco-thats-taking- the-us-by-storm (accessed on July 13, 2020), archived at https://perma.cc/JZX3-F8TU. Others on the west coast, and soon after on the east coast, took note of Kogi BBQ’s success, leading chefs to “scour[] used car lots to find trucks to convert into mobile restaurants.” The Rise of the Food Truck, available at http://www.restaurantengine.com/rise-food-truck (accessed on July 13, 2020), archived at https://perma.cc/GC6Y-F4MR. 5 Food trucks have grown exponentially in popularity since the 2008 economic downturn. That recession forced many talented chefs out of traditional restaurants. See id.

In addition, given the low cost of creating a food truck relative to a brick-and-mortar restaurant, many aspiring chefs have opted to begin their careers with food trucks. See Lorri Mealey, A History of the Food Truck, available at www.thebalancesmb.com/a-history-of- food-trucks-2888314 (accessed on July 13, 2020), archived at https://perma.cc/VDW5- 8BFE; see also Brief of Amicus Curiae Urban Reform at 3-4 (noting the “relatively low startup costs [of food trucks] in comparison to the high capital requirements and complicated, ever-expanding government regulations that accompany starting traditional businesses” and observing that, for many food truck operators, “[s]treet vending is the first rung on these entrepreneurs’ climb up the ladder of economic success”) (internal quotation marks and citation omitted). The ascendance of food trucks has been reflected in popular culture, including the 2014 film “Chef,” starring Jon Favreau, Robert Downey, Jr., and Scarlett Johansson, and in the television programs “The Great Food Truck Race” and “Food Truck Nation.” Baltimore City is no exception to an increasing number of food trucks in U.S. cities. As of May 2017, there were 65-70 food trucks operating in the City, compared with approximately 25 licensed food trucks in 2011-12.

B. The City’s Regulation of Food Trucks In 2014, responding to the increasing popularity of food trucks, the City established a series of regulations that apply to the operation of food trucks within its boundaries. The stated goal of the legislation was to promote “entrepreneurship and a vibrant business 6 climate for food truck vendors and local restaurants,” taking into account “pedestrian, traffic and parking concerns” while also promoting “public safety and health.” Recitals, Council Bill 14-0305 (First Reader, introduced Jan. 13, 2014).1 The resulting Ordinance 14-237 (the “Ordinance”), which is codified as Subtitle 17 of Article 15 of the Baltimore City Code, substantially revised the regulations governing street vending in the City. See Baltimore City Code, Art. 15, Subtitle 17, Editor’s Note. The Ordinance, which became effective on February 28, 2015, established “special regulatory provisions for mobile vendors.” Id.

As relevant here, a “mobile vendor” is defined as “any person that sells, distributes, or offers to sell or distribute food products … from a motor vehicle on City streets or private property within the City of Baltimore.” Baltimore City Code, Art. 15, § 17-1(e)(1). Among other things, the Ordinance sets forth the procedure and requirements to obtain a mobile vending license and creates an administrative appeals process. Id. §§ 17-18 & 17-45.2 The Ordinance also regulates when and where mobile vendors may park their vendor trucks. Street vendors may not operate between the hours of midnight and 6 a.m. in the absence of receipt of a special event permit that explicitly grants permission to operate The City’s overhaul of its laws regarding street vendors was introduced as 1 Ordinance 14-0305.

Upon enactment, it was renumbered Ordinance 14-237. 2 If approved for a license, a street vendor receives a license for a one-year term that can be renewed for an unlimited number of subsequent one-year terms. See id. § 17-19. Alternatively, a person may apply for a temporary street vending license that carries a term of four days and can be renewed for at least one additional four-day period. See id. § 17- 20. 7 during those hours.

Id. § 17-36. In addition, the Ordinance provides parking benefits to, and imposes parking restrictions on, mobile vendors. The primary parking benefit that the City provides to licensed mobile vendors is the right to park free of charge in a “mobile vending zone.” Id. § 17-5. These zones are comprised of designated spaces on City streets or other public property “for the exclusive use of mobile vendors during designated hours.” Id. § 17-5(a)(1).

According to evidence submitted at the trial in this case, without such zones, mobile vendors would have to pay more for parking, and would have to comply with parking time restrictions, which prohibit “meter feeding.”3 A City official explained that mobile vendors had asked the City to provide such vending zones, which “accommodate [their] need for setup time, breakdown time, and [do not] require [them to] pay a disproportionate amount of money for the parking resource on the street.” On the other hand, the Ordinance restricts mobile vendors from parking their vendor trucks in certain places within the City. These restrictions comprise the majority of the prohibitions set forth in Part III of the Ordinance. See id. §§ 17-30 through 17-39.4 The 300-foot rule is one of these restrictions. It provides: 3 The City’s Department of Transportation has published regulations which provide, among other things, that “[a] licensed mobile vendor, not assigned to a designated mobile vending location may vend from any legal parking place, … where the following conditions are met: … No mobile vendor may park at a meter without providing the appropriate meter fees; [and] [n]o mobile vendor may ‘meter feed’ or park in a metered space for longer than the time limit designated as the parking time limit.” Street Vendor Program Rules and Regulations §§ 1100(g) & (h); see also Baltimore City Code, Art. 31, § 7-17(b) (prohibiting parking in a metered space “for a duration longer than that designated”). 4 In addition to imposing parking restrictions, the Ordinance prohibits street vendors of food products from: (1) operating without sufficient trash receptacles, id. § 17-30(a); (2) 8 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 … as that offered by the mobile vendor.

Id. § 17-33.5 Three hundred feet is approximately the length of a typical City block. The term “food product” means “any item used as food, drink, confectionary, or condiment for human consumption, whether simple or compound.” Id. § 17-1(c). The phrases “primarily engaged in” and “same type” are not defined in the Ordinance. The Ordinance provides for enforcement of its provisions by civil citation.

Id. § 17- 41. The Ordinance also provides a misdemeanor criminal penalty for any “person who violates any provision” of the Ordinance. Id. § 17-42. Upon conviction, the violating person “is subject to a penalty of $500 for each offense.” Id.

In addition, the Department of General Services (“DGS”) may suspend or revoke a mobile vending license if the licensee violates any provision of the Ordinance. Id. § 17-44(a)(1). If a mobile vendor commits three violations of any of the prohibitions set forth in Part III of the Ordinance (including the failing to remove all trash within a 10-foot radius of the place where the vendor truck has been parked, id. § 17-30(b); and (3) operating without keeping a detailed logbook noting the vendor’s daily use of its supporting commissary, id. § 17-34(a). 5 The Ordinance also prohibits mobile vendors from parking their vendor trucks: (1) in a residential spot for more than 15 minutes at a time every 48 hours, id. § 17-35; (2) within two blocks of a mobile vending zone, id. § 17-32; (3) within two blocks of a City market, id. § 17-37; (4) within two blocks of the perimeter of any City-authorized farmers’ market when the farmers’ market is in operation, without the written permission of the farmers’ market organizer and holder of the farmers’ market permit, id. § 17-39; and (5) from 7 a.m. to 8 p.m., within two blocks of any building used as a public or private kindergarten, elementary school, or secondary school, or any public transit stop serving a kindergarten, elementary school, or secondary school, id. § 17-38. In addition, no mobile vending zone may be designated within two blocks of a public or private kindergarten, elementary school, or secondary school.

Id. § 17-5(a)(3). 9 300-foot rule), DGS must revoke that vendor’s license. Id. § 17-44(b). If a license is revoked, the former licensee may not apply for a new license until at least one year following the date of revocation. Id. § 17-44(c).

The City has confirmed that it enforces the 300-foot rule. It does so by asking vendors to relocate or to alter their menus based on the menus of the nearby brick-and- mortar establishments. Enforcement authorities take such action only in response to a complaint that a food truck is parked too close to a brick-and-mortar restaurant. No mobile vendor has received a citation or has had its license suspended or revoked for violating the 300-foot rule.

C. Pizza di Joey and Madame BBQ Pizza di Joey and Madame BBQ and their owners, Mr. Vanoni and Ms. McGowan, exemplify many of the greatest benefits of the food truck industry. Mr. Vanoni created Pizza di Joey after his return from a tour of duty in the United States Marine Corps. His fellow servicemembers enjoyed his cooking and encouraged him to get into the food business. Mr. Vanoni tested a variety of pizza recipes before opening his food truck for business in 2014.

At the time, he lacked the capital to open a brick-and-mortar restaurant. A resident of the Federal Hill neighborhood in Baltimore City, Mr. Vanoni obtained a mobile vendor license from the City, but, as discussed below, he primarily traveled to Anne Arundel County to operate his food truck, due to the 300-foot rule. There, his business thrived, as Pizza di Joey became known for its New-York style pizza and Italian pastas and salads. In 2019, Mr. Vanoni opened a brick-and-mortar Pizza di Joey restaurant in Federal 10 Hill,6 but food trucks are still part of his business.

He wishes to focus his mobile-vending operation in Baltimore. Ms. McGowan, owner of Madame BBQ, has worked in the food service industry since she was 15 years old. Barbeque remains a staple offering of her food truck, but since rebranding her business as MindGrub Café in 2016, Ms. McGowan has added a diverse array of healthy food options. Targeting workers in professional occupations, she aims to provide “brain food for knowledge workers.” Ms. McGowan originally focused her operation in Howard County but took her truck to Baltimore City through one-day permits for block parties and special events.

Like Pizza di Joey, Madame BBQ is currently licensed as a mobile vendor in the City. Ms. McGowan also wishes to focus her food truck business in the City. Despite having proper licensing and a desire to operate in the City, both Mr. Vanoni and Ms. McGowan have limited their food truck operations in the City due to the 300-foot rule. Mr. Vanoni came to this decision after a University of Maryland police officer approached the Pizza di Joey truck while it was parked in the 800 block of West Baltimore Street.

The officer explained to Mr. Vanoni that he had received a complaint from a nearby restaurant that Pizza di Joey was parked too close to the restaurant, and told Mr. Vanoni that he would need to move his truck from that location. After Mr. Vanoni accessed the 6 Thus, Mr. Vanoni appears to be an example of a food entrepreneur for whom mobile vending indeed was “the first rung on [the] climb up the ladder of economic success.” Brief of Amicus Curiae Urban Reform at 4; see also Nicholas Alvarez, Regulating the Food Truck Industry: An Illustration of Proximity and Sanitation Regulations, 12 J. Food L. & Pol’y 1, 5 (2016) (“Some food truck owners have been so successful that they are looking into permanent brick-and-mortar spots.”). 11 text of the 300-foot rule on his laptop, he was able to convince the officer that he was not selling the same type of food product as the complaining restaurant (which did not sell pizza). Mr. Vanoni continued to operate at that location that day; indeed, the officer returned during the lunch hour and bought a slice of pizza from Mr. Vanoni. Nevertheless, this incident caused Mr. Vanoni substantial concern because it showed that police officers in the City do enforce the 300-foot rule.

Although Mr. Vanoni had never been cited or charged for violating the 300-foot rule, Mr. Vanoni worried that he might face a criminal charge and/or put his license at risk if he mistakenly operated within 300 feet of a restaurant that primarily sells the same type of food products. In addition, just engaging in a discussion with police to attempt to avoid enforcement means losing precious operating time. After analyzing the menus of the brick-and-mortar restaurants in two Baltimore neighborhoods where he wants to operate – Hampden and Federal Hill – Mr. Vanoni determined that the prevalence of restaurants that sell Italian sandwiches and pizza in those areas effectively makes it impossible for him to operate there. These factors led Mr. Vanoni to severely cut back the operation of his food truck in the City and instead operate 80-90 percent of the time in Anne Arundel County.

As for Ms. McGowan, Madame BBQ’s menu after the rebranding to MindGrub Café became quite varied, as it came to include various salads, soups, and sandwiches, as well as retaining some barbecue items. Ms. McGowan became concerned that the diversification of her menu greatly increased the number of brick-and-mortar restaurants which would be considered as selling primarily the same type of food products as MindGrub Café. Similar to Mr. Vanoni, Ms. McGowan analyzed how the 300-foot rule 12 affected her food truck’s ability to operate in certain desirable areas. She concluded that 31 restaurants in Hampden, 50 restaurants in Federal Hill, and 113 restaurants in the downtown area implicated the 300-foot rule with respect to MindGrub Café.

Ms. McGowan also would like to operate in Waverly Brewing Company’s parking lot on private property, but has concluded that she cannot do so, because Blue Pit BBQ is located within 300 feet, and sells pulled pork sandwiches, as does MindGrub Café. In addition, Ms. McGowan concluded that she cannot legally operate her vendor truck in the parking lot of a commissary she owns in the Locust Point neighborhood because of a nearby restaurant called Barracuda’s. Like Pizza di Joey, Madame BBQ has never been cited for violating the 300-foot rule, nor has Ms. McGowan had any encounter with enforcement agencies with respect to the Rule. But Ms. McGowan became sufficiently concerned about the wide sweep of the Rule and the possibility that she might lose her license, or that she might receive a $500 citation for a violation of the Rule, that she decided not to operate her food truck in the City.

D. The Litigation On May 13, 2016, the Food Trucks filed a Complaint in the Circuit Court for Baltimore City, seeking a declaratory judgment and injunctive relief based on their claim that the 300-foot rule violates their rights under Article 24. The City moved to dismiss the Complaint; the circuit court denied the motion to dismiss. On October 18, 2016, the Food Trucks filed an Amended Complaint, which alleged that, by interfering unreasonably with their right to earn a living, the 300-foot rule: (1) 13 violates the Food Trucks’ right to equal protection under Article 24, both on its face and as applied to the Food Trucks (Count I); and (2) violates the Food Trucks’ right to substantive due process under Article 24, both on its face and as applied to the Food Trucks (Count II). The Food Trucks sought declaratory and injunctive relief, a nominal one-dollar award of damages, as well as costs and attorneys’ fees.

The Food Trucks did not include a claim that the 300-foot rule is unconstitutionally vague in either the original Complaint or the Amended Complaint. The parties engaged in discovery and then filed cross-motions for summary judgment. In its motion for summary judgment, the City argued, among other things, that the Food Trucks’ claims were not ripe because neither Pizza di Joey nor Madame BBQ had suffered any cognizable injury from the 300-foot rule. During oral argument at the hearing on the motions for summary judgment, counsel for the Food Trucks stated that the Food Trucks had “not brought a vagueness argument.” The circuit court denied both summary judgment motions.

As to the City’s argument regarding ripeness, the court found that at least one of the plaintiffs had “demonstrated sufficient facts” to show a “credible threat of prosecution.” On September 28-29, 2017, another judge of the Circuit Court for Baltimore City presided over a nonjury trial of the Food Trucks’ claims. Both Mr. Vanoni and Ms. McGowan testified in the Food Trucks’ case-in-chief, explaining how they wanted to operate their trucks in the City but had altered their business plans based on their conclusion that they were not able to operate effectively in the City without risking sanctions for violating the 300-foot rule. They introduced into evidence maps showing how the 300-foot 14 rule prevents them from parking anywhere in certain neighborhoods of the City in which, but for the Rule, they would sell their food products. Mr. Vanoni also testified about his encounter with the University of Maryland police officer who was attempting to enforce the 300-foot rule.

Notwithstanding their determinations that the 300-foot rule prevented them from operating in certain areas, both Mr. Vanoni and Ms. McGowan also testified that one of the reasons they find the Rule problematic is that they do not know what it covers and what it does not. For example, when asked what “the same type of food product” means to him, Mr. Vanoni answered: “[I]t’s really pretty broad. Is it pizza? Is it flatbread?

Specifically with Pizza di Joey, … is it cuisine? Italian? American? Italian-American?

Sandwiches? I mean, are we talking like the form of the cuisine? The style of it?” While Ms. McGowan offered that at least one comparison was “easy” for her to make – both her truck and a restaurant called Harbor Que sell barbecue – she was not “totally sure” if she would be permitted to park within 300 feet of Blue Hill Tavern, which (like her truck) has chicken sandwiches, salads, and soup on its menu. The Food Trucks introduced transcripts of depositions given by two City officials with knowledge of, and responsibility for, enforcement of the 300-foot rule.

Among other things, those officials testified that the City has not created a document that provides guidance to the departments with enforcement authority concerning standards to apply in enforcing the Rule. However, the officials testified that they applied “commonsense” definitions to the phrases “primarily engaged in selling” and “same type” of food product. Thus, when asked whether pizza is the same type of food product as flat bread, one of the 15 City officials answered that he was unaware of the City having “established a formal position on whether or not those two things are similar or equal,” but stated that he would “argue that flat bread is flat bread and pizza is pizza.” The officials acknowledged that the 300-foot rule is “not an easy rule to enforce” and requires those with enforcement authority to conduct a “subjective analysis” on a “case-by-case basis” whether a restaurant is “primarily engaged in selling” the “same type” of food product as a mobile vendor. The officials explained that there were several factors that could be considered when conducting this analysis, including: (1) the specific items on the respective menus of the food truck and the brick-and-mortar restaurant; and (2) whether the food truck and nearby restaurant offered the same kind of cuisine.

The City called one witness in its defense case: Anirban Basu, who testified as an expert in applied economics. Mr. Basu, who has advised multiple Maryland municipalities regarding economic development strategies, explained that “[a] city has to deliver[] a value proposition that attracts people. Without people[,] cities cannot be financially or economically valuable.” Mr. Basu testified that Baltimore City’s commercial districts are vital in delivering that value proposition to people because they are sources of tax base and jobs. He further opined that commercial vacancies detract from the vibrancy of the City’s commercial districts by negatively affecting the perception of public safety: [P]eople are taking cues from their environment.

If they 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.... Mr. Basu further explained that vacancies in the City’s commercial districts make 16 it more difficult to attract new businesses to those areas 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 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. In Mr. Basu’s opinion, brick-and-mortar restaurants are a very important part of maintaining the vibrancy of the City’s commercial districts because they are major employers, and also “energize the street-scape,” thereby encouraging visitation of the City. While Mr. Basu recognized that food trucks provide the same important service as brick-and-mortar restaurants and also contribute to the vibrancy of a commercial district, he explained that food trucks invest less in the City than their stationary competitors and provide fewer financial benefits for the City: 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 [the] brick and mortar context. And so they’re not generating property taxes, directly or indirectly, the way that a restaurant would…. [T]he typical restaurant employs far more people than the typical food truck….

Mr. Basu explained that a typical restaurant entrepreneur invests approximately four times as much money as a food truck entrepreneur to open for business. Thus, while “[b]oth are taking risks [and] are to be respected for taking those risks, … the restaurateur on average is making a much larger gamble financially than is a typical food truck entrepreneur.” And brick-and-mortar entrepreneurs do not just gamble on their ability to attract and retain customers through the quality of the food offerings; they also gamble on the vibrancy of the City neighborhood in which they choose to set up shop. In this regard, Mr. Basu 17 compared the different courses of action available to food trucks and the City’s brick-and- mortar restaurants after the Baltimore riots of April 2015. Putting himself in the shoes of both a restaurateur with a brick-and-mortar location on Monroe Street in West Baltimore and the operator of a food truck that frequents the same neighborhood, Mr. Basu explained that, as a result of the unrest in the neighborhood, the brick-and-mortar restaurateur has a problem because I am committed to that location.

But if I’m a food truck operator, I get to move…. Maybe I’ll move to the area around Loyola University, which happens to be home to a food truck zone, or maybe I’ll move to the University of Maryland, or maybe I’ll move to the University of Baltimore, or Wabash Avenue…. I’ve got choices. I’m not committing to a particular part of the City.

And so if public safety deteriorates in one part of the city, I move to another. In fact, … there’s nothing stopping me from leaving Baltimore City. Why don’t I go to Towson or some other place? I’m not committed to the City.

My business is on wheels. But that restaurant entrepreneur on Monroe Street or Greenmount, they’re committed to the City. They’re committed to the space. They have a lease.

They may actually own the building in which they operate. That’s not uncommon. And so that is an enormous source of risk. So not only are they risking more capital, they’re making a bigger bet on the City of Baltimore.

For these reasons, Mr. Basu testified, it is sensible for the City to take steps to try to ensure the viability of brick-and-mortar restaurants. One such step, according to Mr. Basu, is the 300-foot rule, which addresses a “free rider” problem that exists when food trucks park near a competing brick-and-mortar restaurant. Using a brick-and-mortar pizzeria in the Fells Point neighborhood as an example,7 Mr. Basu explained the problem and what might happen if the City did not address it: 7 We glean from Mr. Basu’s testimony that he was referring here to BOP, a Fells Point restaurant that stands for “Brick Oven Pizza.” The transcript refers to “Bob Pizza.” We are aware of no pizza restaurant in Fells Point called “Bob Pizza” or “Bob’s Pizza.” Thus, we have changed “Bob” to “BOP” in quoting from this portion of Mr. Basu’s testimony. 18 [L]et’s say a pizzeria creates a reputation. People say I want to go to BOP Pizza…. [T]hat restaurant is essentially paying property taxes all day and night, but … a food truck can come during an advantageous part of the day just when the market is hottest, just when BOP Pizza could generate the most revenues on a per hour basis and I’m going to sit in front of BOP Pizza at that time.

Is that fair? I have created the market as BOP Pizza… I’ve made a commitment over the long term. I’ve bought equipment. I’ve hired [staff] and now I’ve got patrons coming in my direction and they can be siphoned off by a food truck that’s going to be gone in two hours.

To me, that is not a satisfying outcome. And it doesn’t strike me as fair competition and it very much strikes me as a free rider problem. That food truck is free riding upon the efforts of that pizzeria and in my mind policy makers shouldn’t support that. …. [O]ne economic actor is engaging in a certain level of investment or expenditure and I am able to free ride on those efforts without having to expend my own resources. And in that sense it’s unfair because I’m being subsidized involuntarily by this other economic actor.… If I were a restauranteur or would[-]be restauranteur, … and I know that … a food truck … selling primarily the same item can locate right in front of my restaurant I may not open up the restaurant in the first place.

Why would I spend … hundreds of thousands of dollars, take on all kinds of liability…. Why … spend that money just so a food truck that moves right in front of me can be successful for a few hours of the day before they move on to Baltimore County [or] wherever they’re going to go? It doesn’t make sense to me. That’s the kind of thing … that produces commercial vacancies.

That’s the kind of thing that produces unemployment and we have enough of that in this City. Mr. Basu opined that the 300-foot rule addresses this free rider problem, i.e., unfair competition between food trucks and brick-and-mortar restaurants, “very strongly”: My conclusion is very firmly that [the 300-foot rule] inures 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. The Food Trucks did not call an expert witness of their own in their case-in-chief or in 19 rebuttal following Mr. Basu’s testimony. During the Food Trucks’ closing argument, the circuit court asked if the Food Trucks, in addition to arguing that the 300-foot rule violates substantive due process and equal protection, were also contending that the regulation was impermissibly vague because of “the ability to interpret [it] in different ways.” The attorney for the Food Trucks at first seemed to suggest that the Food Trucks were advancing a vagueness challenge.

However, as he went on in his answer, he did not assert that the 300-foot rule is void for vagueness. Rather, he restated the Food Trucks’ claims regarding substantive due process and equal protection. After the City’s counsel argued during his closing argument that the Food Trucks lacked standing to present an as-applied vagueness challenge and that a facial challenge on vagueness grounds would not have merit, the Food Trucks’ attorney clarified during his rebuttal argument that “we didn’t raise a void for vagueness challenge.” After the trial concluded, the circuit court took the case under advisement. On December 20, 2017, the court issued a Memorandum and Order.

Applying “heightened rational basis” scrutiny, the court found that the 300-foot rule (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 risk 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. Promoting brick-and-mortar restaurants provides jobs, property tax revenue, 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. 20 The court concluded that, because the 300-foot rule is substantially related to achievement of the City’s legitimate purpose of ensuring the vibrancy of its commercial districts, the 300-foot rule does not infringe on the Food Trucks’ substantive due process and equal protection rights. However, despite the Food Trucks having disclaimed a vagueness challenge to the 300-foot rule, the circuit court held that the Rule is unconstitutionally vague in two ways. First, the court concluded that the phrases “primarily engaged in” and “same type of food product” deprive mobile vendors of 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 brick-and-mortar establishments and food trucks.” With respect to the latter problem, the circuit court construed § 17-33 to require that the 300-foot distance be measured “from the closest point of the space in the building that is occupied by the restaurant – or by the food court in which the restaurant is located (rather than at the closest point of the building in which the restaurant is located) to the closest point of the food truck.” As to the former, the circuit court proffered no saving construction, and held that the lack of fair notice “prevents enforcement officials, brick-and-mortar restaurants, and food trucks from understanding what constitutes a violation of the rule.” For that reason, the circuit court enjoined the City from enforcing the 300-foot rule.

The circuit court’s injunction went into effect on February 19, 2018. Resolving the parties’ cross-appeals, the Court of Special Appeals first held that the Food Trucks’ substantive due process and equal protections claims were ripe. Pizza di Joey, 21 LLC v. Mayor & City Council of Baltimore, 241 Md. App. 139, 160-63 (2019). While the circuit court had found that at least one of the plaintiffs had “demonstrated sufficient facts” to show a “credible threat of prosecution,” the intermediate appellate court rejected the City’s ripeness challenge for a different reason.

The Court of Special Appeals observed that “[a]lthough 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, … 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.” Id. at 162 . On the merits, the intermediate appellate court applied rational basis review to the 300-foot rule, and held that the Rule is rationally related to the legitimate government purpose of protecting brick-and-mortar establishments from free-riding mobile vendors. Thus, the Court of Special Appeals agreed with the circuit court’s determination that the 300-foot rule does not violate the Food Trucks’ rights to substantive due process and equal protection under Article 24.

Id. at 163-78 . However, the court reversed the circuit court’s grant of injunctive relief, concluding that the Food Trucks did not preserve a vagueness challenge for appellate review and, even if they did, the 300-foot Rule is not impermissibly vague. Id. at 178-82 . The Food Trucks sought certiorari in this Court.

On September 9, 2019, we granted the Food Trucks’ petition. 466 Md. 192 (2019). 22 II Standard of Review Where, as here, “an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c); see Sapero v. Mayor & City Council of Baltimore, 398 Md. 317, 333-34 (2007). We review the trial court’s legal conclusions without any deference. Id. at 334 .

The proper scope of a constitutional right, and its application to a particular set of facts, are issues of law. See State v. Cates, 417 Md. 678, 691 (2011); Glover v. State, 368 Md. 211, 220-21 (2002). Therefore, we review such questions de novo. Schisler v. State, 394 Md. 519, 535 (2006).

III Discussion A. The Food Trucks’ Substantive Due Process and Equal Protection Claims Are Justiciable. Before we address the constitutionality of the 300-foot rule, we consider the City’s argument that the Food Trucks’ substantive due process and equal protection claims are not justiciable under the declaratory judgment act. In the courts below, the City argued that those claims were not sufficiently ripe to present an actual controversy. The circuit court and the Court of Special Appeals rejected the City’s ripeness challenge, although for different reasons.

We, too, shall hold that the Food Trucks’ substantive due process and equal protection claims are justiciable. 23 The declaratory judgment act provides that “a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceedings, and if … [a]n actual controversy exists between contending parties.” Md. Code, Cts. & Jud. Proc. § 3-409(a)(1) (1973, 2013 Repl. Vol.). 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 (2014); Hatt v. Anderson, 297 Md. 42, 45 (1983) (“[T]he existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action.”). A case is not justiciable if it is not “ripe” for review. See State Center, 438 Md. at 591 . A claim for declaratory relief “lacks ripeness 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.” Id.

The purpose of the declaratory judgment act is not to “decide theoretical questions or questions that may never arise, or questions which have become moot, or merely abstract questions…. To address issues which are non-justiciable because they are not ripe would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.” Hickory Point P’ship v. Anne Arundel Cty., 316 Md. 118, 129-30 (1989); see also State v. G & C Gulf, Inc., 442 Md. 716, 718-19 (2015). In its motion for summary judgment and before the Court of Special Appeals, the City argued that, because neither Pizza di Joey nor Madame BBQ has been prosecuted or cited (or threatened with such prosecution or citation) for violating the 300-foot rule, the Food Trucks’ challenge to the Rule only “exists in the abstract” and therefore is not ripe. Thus, the City argued, the circuit court should have dismissed this case. 24 The Court of Special Appeals recognized that neither Pizza di Joey nor Madame BBQ faced imminent prosecution when they filed their action for a declaration that the 300-foot rule is unconstitutional.

However, the Court of Special Appeals observed: [I]f 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. …. 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, … 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.

Pizza di Joey, 242 Md. App. at 162; see also Oyarzo v. Maryland Dep’t of Health & Mental Hygiene, 187 Md. App. 264, 275 (2009) (“[T]he right [the plaintiff] seeks to protect is the right to pursue a business opportunity. He asserts that the challenged regulation restricts his right to pursue his chosen profession…. This is not a case in which the event triggering the controversy is remote and contingent. There is no need for [the plaintiff] 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].”).

The intermediate appellate court further explained that the Food Trucks are “indisputably limited in their business” because the 300-foot rule “restricts where they can sell and affects their potential profitability.” Pizza di Joey, 241 Md. App. at 162-63 . Rejecting the City’s description of the Food Trucks’ claims as purely abstract and 25 theoretical, the Court of Special Appeals observed that the controversy’s “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).” Id. at 163 . Thus, the court held that the Food Trucks’ claims are “sufficiently ‘concrete and specific’ to generate a controversy that is ripe for review.” Id. (quoting Hatt, 297 Md. at 46 ).

We agree with the Court of Special Appeals’ analysis concerning ripeness in this case.8 Implicitly recognizing the soundness of the Court of Special Appeals’ holding on ripeness, the City has shifted the focus of its justiciability argument in this Court. The City now contends that the Food Trucks have not made a sufficient showing that they have suffered a specific, quantifiable, negative financial impact as a result of the Rule, such that they may challenge its constitutionality. Indeed, the City observes that “business apparently has been quite good for Pizza di Joey,” given that, in 2019, Mr. Vanoni was able to open a brick-and-mortar location in the City’s newly renovated Cross Street Market in Federal Hill.9 Contrary to the Dissent’s concern, we continue to require that courts decide actual 8 cases and controversies, not abstract or hypothetical cases. However, the mere presence of a criminal penalty for violations of the Ordinance does not render the Food Trucks’ substantive due process and equal protection claims abstract.

The record reflects that the City actively enforces the 300-foot rule, but not by charging any mobile vendors under the Rule’s criminal penalty provision, or even by citing them civilly or seeking license suspension or revocation. Rather, the City enforces compliance with the Rule by asking mobile vendors to move after a nearby restaurant complains. The City may not insulate the 300-foot rule from constitutional challenge by pointing to a criminal penalty that it chooses not to use, while simultaneously enforcing compliance with the Rule through other means. 9 The record does not tell us how the Madame BBQ food truck fared in Howard County while Ms. McGowan operated it there. 26 The City’s current argument is less about ripeness and more about the standing of these particular plaintiffs to seek relief. While the doctrines of standing and ripeness both “fall under the umbrella of justiciability,” G & C Gulf, 442 Md. at 696 n.2 (internal quotation marks and citation omitted), they are distinct.

See id.; State Center, 438 Md. at 498 . Standing “refers to whether the plaintiff has shown that he or she is entitled to invoke the judicial process in a particular instance,” id. at 502 (cleaned up); whereas a question of ripeness “arises if parties, entitled to invoke the judicial process, ask the court to declare their rights upon a state of facts which has not yet arisen, or upon a matter which is future, contingent and uncertain.” G & C Gulf, 442 Md. at 696 n.2 (cleaned up). The requirement of standing “is designed to ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution.” Kendall v. Howard Cty., 431 Md. 590, 603 (2013) (internal quotation marks and citations omitted). “Under Maryland common law, standing to bring a judicial action generally depends on whether one is aggrieved, which means whether a plaintiff has an interest such that he or she is personally and specifically affected in a way different from the public generally.” Id. (cleaned up); see also Evans v. State, 396 Md. 256, 328 (2006) (“[A]n individual or an organization has no standing in court unless he has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public.”) (cleaned up); Davis v. State, 183 Md. 385, 389 (1944) (allowing pre-enforcement declaratory judgment challenge to Maryland statute prohibiting medical doctors from advertising their services, where plaintiff doctor was “directly affected” by the statute; doctor was “entitled to apply for a declaratory judgment … rather 27 than run the risk of being subjected to criminal prosecution, and possibly having his license revoked”); cf. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 , 689 n.14 (1973) (explaining that the purpose of the analogous federal law standing requirement of “injury-in-fact” is “to distinguish a person with a direct stake in the outcome of a litigation – even though small – from a person with a mere interest in the problem”).

We disagree with the City’s contention that the Food Trucks lack standing to challenge the 300-foot rule. The Food Trucks sufficiently established that they are aggrieved by the 300-foot rule. Unlike members of the general public, who might be disappointed that the 300-foot rule results in their having fewer food options in Federal Hill, Hampden, and other City neighborhoods, the Food Trucks are personally and specifically affected by the Rule in a way that the general public is not. The Food Trucks both applied for and received mobile vendor licenses.

Thus, they both paid fees for the privilege to operate in the City. Mr. Vanoni and Ms. McGowan both testified without contradiction that, but for the 300-foot rule, they would have focused their mobile vending businesses in various specific commercial districts in the City, including Federal Hill and Hampden.10 In other words, the Food Trucks specifically altered their business plans as a result of the 300-foot rule. We are also satisfied by our review of the record that, but for the Rule, Pizza di Joey and Madame BBQ both would have received substantial revenues 10 Notably, both Mr. Vanoni and Ms. McGowan operate other food-related ventures in Baltimore City. As discussed above, Mr. Vanoni now operates a brick-and-mortar Pizza di Joey restaurant in Federal Hill.

And Ms. McGowan owns a commissary in Locust Point. 28 from operating in Hampden and Federal Hill. In addition, we can infer from the record that Mr. Vanoni, a resident of the City, incurred greater fuel expenses by driving to and from Anne Arundel County to operate his truck than he would have if he had been able to operate his truck closer to home in the Federal Hill or Hampden neighborhoods of the City. Given these concrete and particularized effects of the 300-foot rule on the Food Trucks, we conclude that the Food Trucks have standing to challenge the Rule’s constitutionality.11 In sum, we are satisfied that the Food Trucks have stated justiciable substantive due process and equal protection claims. Thus, we will consider those claims on their merits.

B. The 300-foot Rule Does Not Violate the Food Trucks’ Rights to Substantive Due Process and Equal Protection Under Article 24. The Food Trucks argue that the Court of Special Appeals erred in applying rational basis review to their substantive due process and equal protection claims under Article 24. According to the Food Trucks, the proper test when determining the constitutionality of 11 As the City points out, in some cases in which this Court has found that plaintiffs had standing to bring pre-enforcement challenges of statutes covering their conduct, those plaintiffs alleged, or it was undisputed, that their compliance with the statutes had reduced their income significantly. See Bruce v. Director, Dep’t of Chesapeake Bay Affairs, 261 Md. 585, 588, 591, 595 (1971) (undisputed that territorial restrictions on crabbing and oystering had a severe economic impact on plaintiff watermen); Davis, 183 Md. at 387-89 (doctor alleged that, after he complied with statute prohibiting advertising, his revenues fell more than 50 percent from previous years when he did advertise).

But causing a loss of net income is not the only way that an economic regulation can concretely affect a business to its detriment. A regulation can, as here, cause a business to change its business plan out of fear that compliance may result in prosecution or the loss of a license. Moreover, loss of net income is not the only financial harm that can satisfy the requirement of standing. If, as here, a business alleges the loss of a particular source of revenue as a result of an economic regulation, the fact that the business may be able to partially or even completely replace that revenue by operating in a different jurisdiction is immaterial to the standing analysis. 29 legislation that burdens a person’s ability to practice a lawful trade is heightened rational basis review.

The Food Trucks contend that, if we apply that more rigorous test to the 300- foot rule, we must find that it violates their rights to substantive due process and equal protection under Article 24. Alternatively, the Food Trucks argue that the 300-foot rule is unconstitutional even under the more deferential rational basis test. The City asserts that we should review the 300-foot rule under the more deferential rational basis standard, and that the Court of Special Appeals correctly held that the Rule passes constitutional muster under that test. The City alternatively argues that, if we apply heightened rational basis review (as did the circuit court), the result remains that the 300- foot rule does not violate the Food Trucks’ rights to substantive due process and equal protection under Article 24.

We agree with the City in all respects. 1. Rational Basis Review Is Appropriate for This Case. Article 24 provides “[t]hat 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.” This provision of the Declaration of Rights guarantees due process and equal protection of the laws to the people of Maryland.12 When a statute creates a distinction based upon “clearly suspect” criteria (such as race, gender, religion, or national origin), or when it infringes on a “fundamental” right, 12 Although Article 24 is titled “Due process” and does not expressly address equal protection of the laws, it is well settled that “the concept of equal protection nevertheless is embodied in the Article.” Renko v. McLean, 346 Md. 464, 482 (1997); see also Dan Friedman, The Maryland State Constitution 59-60 (2011). 30 we apply strict scrutiny when considering a substantive due process or equal protection challenge to it. See, e.g., Powell v. Maryland Dep’t of Health, 455 Md. 520, 548 (2017); State v. Burning Tree Club, Inc., 315 Md. 254, 296 (1989); Murphy v. Edmonds, 325 Md. 342, 356 (1992).

We will invalidate a statute that is subject to strict scrutiny unless it “is necessary to promote a compelling governmental interest.” Conaway v. Deane, 401 Md. 219, 272-73 (2007), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Because such statutes must be the least restrictive means available to accomplish the compelling governmental interest, they “rarely survive the legal glare.” Id. at 273. On the other end of the spectrum are statutes that do not discriminate on the basis of an inherently suspect classification and do not burden any fundamental constitutional right. We assess whether such a statute is “rationally related to a legitimate governmental interest.” Id. at 274 (internal quotation marks and citation omitted).

Rational basis review is “the least exacting and most deferential standard of constitutional review.” Id. at 273- 74. Under this standard, we presume that the challenged statute is constitutional, and will uphold it “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [we] can only conclude that the [State’s] actions were irrational.” Murphy, 325 Md. at 355 (internal quotation marks and citations omitted). Put another way, we will uphold a statute under this form of review if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Washington v. State, 450 Md. 319, 344 (2016) (internal quotation marks and citation omitted). 31 Between these poles are statutes that burden “important personal rights, not yet held to merit strict scrutiny but deserving of more protection than a perfunctory review would accord.” Murphy, 325 Md. at 382 (quoting Attorney Gen. of Md. v. Waldron, 289 Md. 683, 713 (1981)). Our prior cases suggest that these statutes in the middle can, themselves, be divided into two groups that receive different levels of review.

First, when a statute makes a distinction based on a “quasi-suspect” classification, such as illegitimacy, a court reviews the statute under what the Supreme Court and this Court have referred to as “intermediate scrutiny.” See Conaway, 401 Md. at 275-76 . To withstand this level of review, a statute must “serve important governmental objectives and must be substantially related to the achievement of those objectives.” Id. at 276 (internal quotation marks and citations omitted). Second, an economic regulation that prohibits an individual from practicing his or her chosen trade, or that, on its face, discriminates based on a factor that is unrelated to the stated purpose of the regulation, is reviewed under a “heightened rational basis” test. See Waldron, 289 Md. at 728 ; Verzi v. Baltimore County, 333 Md. 411, 419 (1994).

When such an economic regulation is reviewed under Article 24, courts will not accept “any reasonably conceivable state of facts that could provide a rational basis” for the challenged legislation, Washington, 450 Md. at 344 , but rather will consider only “those purposes that are obvious from the text or legislative history of the enactment, those plausibly identified by the litigants, or those provided by some other authoritative source.” Waldron, 289 Md. at 722 . To survive heightened rational basis review, the statute in question must bear “a real and substantial relation to the problem addressed by the statute.” Id. at 728 . 32 As the Court of Special Appeals explained, see Pizza di Joey, 241 Md. App. at 168 , the “real and substantial relation” language also appeared in some of this Court’s decisions in the early years of the twentieth century concerning substantive due process. During this period, sometimes referred to as the “Lochner era,” after Lochner v. New York, 198 U.S. 45 (1905), the Supreme Court invalidated a number of federal and state statutes that sought to regulate economic conditions. The Supreme Court was skeptical during that era of legislative enactments that interfered with the right to contract.

So was this Court, which stated that “[t]he legislative authority to abridge [freedom of contract] can be justified only by exceptional circumstances. The guarantee of due process simply demands that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” Daniel Loughran Co. v. Lord Baltimore Candy & Tobacco Co., 178 Md. 38, 44 (1940) (internal quotation marks and citations omitted). As the Court of Special Appeals observed, Pizza di Joey, 241 Md. App. at 170-71 , we abandoned this line of “real and substantial relation” cases in 1977, when we decided Governor of Md. v. Exxon, 279 Md. 410 (1977), and applied the more deferential form of rational basis review to an economic regulation. In that case, we explained that we had returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws….

Legislative bodies have broad scope to experiment with economic problems…. We refuse to sit as a superlegislature to weigh the wisdom of legislation…. [I]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Id. at 425-26 (internal quotation marks and citations omitted). 33 We disagree with the Food Trucks’ contention that Exxon is a “constitutional outlier.” We reaffirm that, under Article 24, an economic regulation that does not affect an important personal right at all is reviewed under the rational basis test. In contrast, a statute that entirely prohibits a person from practicing a trade receives heightened rational basis scrutiny under the “real and substantial