have not proffered any other evidence of the allegedly discriminatory motive, I cannot find that they have demonstrated a reasonable likelihood of success on their claim that the ordinance was intended to disfavor African-American vendors.
2. The claim that the City deliberately failed to give notice of the new application procedure to the plaintiffs because of their race
Plaintiffs also allege that, while they received no notice of the new application procedure under Section 9-204, vendors who were not African-American did receive notice, and that this was the result of a deliberate plan on the part of the City. These factual allegations, if true, could support a claim for denial of equal protection. I will therefore allow the plaintiffs to proceed on this issue for the purposes of seeking a preliminary injunction, and will order an evidentiary hearing on the issue of whether the plaintiffs were treated differently than sidewalk vendors who are not African-American, and, if so, whether that different treatment was intentional. Both elements must be present to support a claim for denial of equal protection. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).
D. The Substantive Due Process and Takings Arguments
Plaintiffs also characterize Section 9-204 as "arbitrary", "unreasonable", and "irrational", thus apparently stating a substantive due process challenge to the ordinance. A law comports with the requirements of substantive due process if that law is rationally related to a legitimate government interest. Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir. 1980), cert. denied sub nom. Mark-Garner Assoc., Inc. v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981). Determination of whether a legislative scheme is rationally related to a legitimate government interest is a question of law for the court. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 682 (3d Cir. 1991), cert. denied, 118 L. Ed. 2d 389, U.S. , 112 S. Ct. 1668 (1992). Allegations that the government deliberately and arbitrarily abused its power, as when its actions are motivated by bias, bad faith, or improper motive, may support a finding of substantive due process violations. Midnight Sessions, 945 F.2d at 683.
Since plaintiffs do not explain why they view Section 9-204 as arbitrary or irrational, the only allegation of the complaint and motion for preliminary injunction which might support a substantive due process claim is the allegation that the City enacted Section 9-204 for the express purpose of reducing the number of African-American vendors in Center City. This argument is identical to the plaintiffs' argument that the enactment of Section 9-204 violates the Equal Protection Clause because of its discriminatory design, which I have already addressed.
Finally, both the plaintiffs and the City cite, at various times, cases relevant to a claim for taking of private property for public use without just compensation in violation of the Fifth Amendment. It is not clear whether the plaintiffs actually intend to argue that such a taking has occurred. Since the plaintiffs have not shown that they had a property interest in their customary vending locations, the only "property" which the City may have "taken" are the plaintiffs' 1993 vending licenses. "A taking is not established simply upon a showing of the denial of the ability to exploit a property interest that the plaintiffs heretofore had believed was available." Midnight Sessions, 945 F.2d at 676 (citations omitted). In general, where the regulation leaves the plaintiff with other reasonably beneficial uses for her property, there is no taking. Id. Here, the enactment of Section 9-204 did not interfere with the plaintiffs' ability to vend anywhere in Philadelphia other than Center City. In the absence of a more clearly defined takings claim, I cannot find a reasonable likelihood that the plaintiff would succeed upon such a claim.
II. Irreparable Injury
The chief injury alleged by the plaintiffs is loss of business opportunity. While economic damages alone are generally not enough to constitute irreparable harm, there is an exception in the instance where the economic loss may be severe enough to destroy a business. The plaintiffs are not currently prevented from vending outside of Center City, and several of them are vending within Center City, though not at their former locations. Nevertheless, I cannot, without more evidence, assume that the economic damages here are insufficient to constitute irreparable harm. I will therefore entertain evidence on this issue.
AND NOW, this 5th day of January 1994, it is ORDERED that the court shall hold an evidentiary hearing on plaintiffs' motion for preliminary injunction on January 18, 1993 at 9:30 a.m. in Courtroom 3B. The parties will have a maximum of three hours each to present evidence on the plaintiffs' claim that the City discriminated against them because of their race in the enforcement of Section 9-204 and on the issue of injury to the plaintiffs. The three hour limit includes cross-examination, which will be closely monitored by the court. It is further ORDERED that the motion for preliminary injunction is DENIED as to all other claims of the plaintiffs, without prejudice to their rights to seek a permanent injunction or other relief based on those claims.
Anita B. Brody, J.