The opinion of the court was delivered by: NEWCOMER
The plaintiffs seek a declaratory judgment that Section 9-205 of the Philadelphia Code, which provides for the licensing and regulation of sidewalk vendors, violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Because I find that Section 9-205 is constitutional on its face and as applied, I will grant the defendants' motion to dismiss the complaint.
The allegations of the complaint, which must, of course, be accepted as true in ruling on a motion to dismiss, may be summarized as follows: The plaintiffs operate businesses on premises that they lease or own in Center City Philadelphia. They have certain rights and responsibilities with respect to the sidewalks abutting these premises.
Sidewalk vendors operate on the sidewalks abutting the plaintiffs' businesses without obtaining the consent of the plaintiffs. The vendors' operations harm the plaintiffs' businesses by, among other things, impairing access to the businesses, blocking public view of advertising and displays in the plaintiffs' establishments, impairing customer parking, causing trash to accumulate on the sidewalk, and producing obnoxious odors. These vendors are licensed by the defendants pursuant to the provisions of Section 9-205. The defendants know or have reason to know that the vendors will set up their operations on the plaintiffs' property without obtaining the plaintiffs' consent.
The plaintiffs contend that Section 9-205 is unconstitutional on its face, in that it deprives them of property without due process of law, thus violating the Fourteenth Amendment of the Constitution. A cursory reading of the section demonstrates the error of the plaintiffs' position.
Section 9-205 of the Philadelphia Code
is clearly an effort by the City of Philadelphia to deal with some of the problems engendered by sidewalk vending, primarily sidewalk congestion and litter. Section 9-205 regulates the size of the stands used by vendors and the placement of these stands on the sidewalk. It prohibits all vending on certain major thoroughfares and requires vendors to provide trash receptacles and to clean up their areas when they leave. Finally, in what is obviously an effort to facilitate enforcement of Section 9-205's substantive provisions, vendors are required to obtain a license before vending. Prerequisites to obtaining a license are minimal, and are clearly designed only to aid in the identification of the vendors.
An applicant for a vending license must pay a small fee, provide two small photographs of himself, provide proof of identity and address, a physical description of himself, a brief description of the goods to be sold, and the identity of his employer, if any.
The plaintiffs claim that this modest attempt to regulate sidewalk vendors is constitutionality unsound because it does not require license applicants to specify the location at which they intend to vend, to obtain the permission of the owners of the property abutting the proposed location, or limit the vending to that location.
constrained to reject the contention of defendant that Section 9-205 constitutes a general grant by the municipality of permission to vendors to set up stands on public sidewalks regardless of the objections of the owner of the abutting property; we read the section to have been intended merely as a restriction placed by the municipality on the potential blockage of public passage on sidewalks inherent in the existence of sidewalk stands. As such, the section is merely a regulation by the municipality, issued incident to its police powers in the interest of protecting the public safety, and this restriction on the use of sidewalks is in addition to, rather than an eradication of, the aforementioned right of an owner of abutting property to prevent a conflicting private use of his land.
City of Philadelphia v. Street, 63 D. & C. 2d 709, 713-14 (C.P. Phila. 1974).
Thus it is extremely hard to understand just what it is that plaintiffs claim has been taken away from them by Section 9-205. If, for instance, this Court were to strike down Section 2-905, it is difficult to see how the plaintiffs' position would in any way be improved. The result would simply be that there would be no general regulations governing sidewalk vending. The plaintiffs would have no remedy for vendor trespasses that they do not now have, and would have lost whatever protection is provided by Section 9-205. Because I cannot see how Section 9-205 has deprived the plaintiffs of any property interest, I do not see how Section 9-205 can be found to be in violation of due process.
The plaintiffs' allegation that the existence of Section 2-905 may encourage vendors to trespass on plaintiffs property does not enable plaintiffs to withstand the defendants' motion to dismiss. The plaintiffs' reliance on Reitman v. Mulkey, 387 U.S. 369, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967) to support this position is misplaced. In Reitman the Supreme Court found that a California constitutional amendment prohibiting any agency of the state from interfering with the decision of an individual to sell, lease, or to refuse to sell or lease real property to any other individual violated the United States Constitution. The Supreme Court examined the history of the amendment and its effect on preexisting California law. It concluded, as had the California Supreme Court, that the amendment was not simply a repeal of existing laws forbidding private racial discrimination, but rather that it was a law clearly intended to authorize racial discrimination in housing. The Court held that the amendment so significantly involved the state of California with invidious discrimination that it was rendered unconstitutional.
As has previously been noted Section 2-905 does not authorize trespassing by vendors nor can it rationally be said that the purpose of Section 2-905 is to permit or encourage vendors to trespass on private property.
In conclusion, it is important to remember that the issue before me is not whether the protections sought by the plaintiffs are needed or would be good public policy. The only issue before me is whether the failure of the City to include the proposed requirements in Section 9-205 renders that regulation unconstitutional. I cannot conclude that the failure of the City of Philadelphia to address every problem caused by sidewalk vending is an omission of constitutional dimensions.
The plaintiffs' remedy clearly does not lie with the federal judiciary, but rather lies either with the state court or with the Philadelphia City Council.
Repealing the ordinance approved December 29, 1975 (Bill 2182), and repealing Section 9-205 of the Philadelphia Code, relating to sidewalk sales and adding new provisions regulating sidewalk sales.
WHEREAS, The Council of the City of Philadelphia finds that the unrestricted sale of goods, wares and merchandise on City sidewalks constitutes an impediment to, interference with and a nuisance to pedestrians on the sidewalks, and interferes with the rights of ingress, egress, light, air, view of and access to the abutting property owners, and therefore is a public nuisance; and
WHEREAS, The Council of the City of Philadelphia finds that there is a substantial public benefit in limiting the sale, display and offering for sale of such goods, wares and merchandise on the City sidewalks under standards set forth in this Ordinance; now therefore
The Council of the City of Philadelphia hereby ordains:
SECTION 1. Section 9-205 of the Philadelphia Code, relating to sidewalk sales is hereby repealed and the following sub-sections relating to sidewalk sales are added as follows:
(1) Definitions: In this Section, the following definitions apply:
(a) Stands. Any stand, showcase, table, bench, rack, cart, stall or any other fixture or device whatever which is used for the purpose of displaying, exhibiting, carrying, transporting, storing or offering for sale, or the selling of any goods, wares or merchandise upon the sidewalk;
(b) Goods, Wares and Merchandise shall include but not be limited to vegetables, produce, garden truck, fruits, plants, flowers, pretzels, or food, drinks, ice cream, dairy products, cakes, pies, pastries or candy sold for immediate consumption, leather goods, cosmetics, beauty aids, hair pieces, wearing apparel of any kind, jewelry, ornaments, art work, decorative items, tobacco, or tobacco products, except paper bound or cloth bound books, magazines, periodicals or newspapers only when sold or offered for sale in accordance with and subject to § 9-205(4), § 9-205(5)(a)(b), § 9-205(8)(g) and § 9-208 (reserved);
(c) Sidewalk. All that area legally open to the public use as a pedestrian public way between the curb line and the legal building line of the abutting property;
(d) Vendor. Any person who exhibits, displays, offers for sale or sells any goods, wares or merchandise from any stand while on the sidewalks of the City of Philadelphia. Vendor shall also include any "peddler," "hawker," "huckster," "itinerant merchant" or "transient vendor" whose activities or conduct are not covered by § 9-201 or § 9-203.
(2) Exemptions. The provisions of this Section shall not apply to:
(a) Goods, wares, or merchandise temporarily deposited on the sidewalk in the ordinary course of delivery, shipment or transfer;
(b) The placing and maintenance of stands and other display or sales devices for the sale, display or offering for the sale of newspapers, magazines, periodicals and of paperbound books if sold in compliance with the provisions of § 9-205(4), § 9-205(5)(a), (b), § 9-205(8)(g) and Sect. 9-208 (reserved);
(c) The display and sale of Christmas trees pursuant to a permit issued by the Department during the three weeks prior to December 25.
(3) License. It shall be unlawful for any person to engage in the business of sidewalk selling unless he or she has first obtained a license from the Department of Licenses and Inspections.
(a) Each license issued shall show the name and address of the licensee, the type of license issued, the kind of goods to be sold, the amount of the license fee, the date of issuance, the license number and a photograph of the licensee not ...