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LINDSAY v. CITY OF PHILADELPHIA

January 5, 1994

RICHARD LINDSAY, et al.
v.
CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: ANITA B. BRODY

 The question before me is whether, as a matter of law, the plaintiffs are entitled to a preliminary injunction to halt the implementation of Section 9-204 of the Philadelphia Code, which regulates sidewalk vending in Center City Philadelphia. After consideration of the memoranda filed by counsel for the plaintiffs and the City, and of the statements of counsel at oral argument, I will order an evidentiary hearing only on the plaintiffs' claim that Ordinance 9-204 was enforced in a discriminatory manner and will decline to issue a preliminary injunction on other grounds, because the plaintiffs have not shown a reasonable probability of success on the merits of their other claims, even assuming the facts to be as they allege.

 This complaint and motion for preliminary injunction were brought by a group of African-Americans who are licensed as street vendors by the City of Philadelphia. *fn1" The plaintiffs seek to stop implementation of the newly enacted Section 9-204 of the Philadelphia Code, which limits street vending in Center City Philadelphia to specific locations and requires current vendors to apply and compete for those spots. The plaintiffs assert that they did not receive notice of the requirements of the new ordinance until it was too late, and that as a result, they were forced to vacate the vending locations they had occupied for periods ranging from two to ten years. The plaintiffs argue that they have been deprived of property without due process of law, that the City's actions in limiting the scope of their licenses before the end of the license term violates the constitutional prohibition against legislative impairment of contracts, and that the City ordinance was both enacted with a racially discriminatory purpose and enforced in a racially discriminatory manner. A hearing was held on the motion for preliminary injunction on December 30, 1993, at which the court heard oral argument but did not take evidence.

 FACTS

 Because my decision at this point is based solely upon the briefs and arguments of counsel, I must take the facts to be as the plaintiffs allege them.

 Prior to the enactment of Section 9-204, a person who obtained a sidewalk vending license in Philadelphia was permitted to vend anywhere in the City where sidewalk vending was not expressly prohibited. While no vendor was licensed for any particular location, in practice many vendors set up at the same location every day. Under the new Section 9-204, a special license, assigning a particular location, is required to vend within the area known as Center City; the ordinance also limits the number of Center City vendors to 325. Section 9-204 (7)(a).

 Under the new ordinance, vending locations in Center City are allocated according to how long a particular vendor has been vending at or near that location. Applicants for Center City vending licenses are required to select five locations in which they are interested. Section 9-204 (4)(a)(.3). Those who have vended at or near a particular location for at least two years prior to the enactment of the ordinance are ranked in order of seniority, and ties among those so ranked are resolved by lottery. Section 9-204 (8)(d)(.1). The ordinance does not specify how notice is to be given of the new licensing requirements. The parties agree that the City did not mail notices or application forms to all holders of sidewalk vending licenses.

 The plaintiffs allege that they did not receive word of the need to apply for a particular space until well after the March 13, 1993 application deadline; most claim that they did not know of the application process until they heard about it on the street in September 1993, or until they received orders to relocate their stands in October or November of 1993. They also allege that other vendors who were not African-American did receive notice, and were able to participate in the allocation of vending spaces.

 The City ordered the plaintiffs to vacate their usual vending locations by November 29, 1993. Some of the plaintiffs have moved to other locations in Center City, some have appealed their exclusion from the selection process to the Board of License and Inspection Review and have prevailed. All of the plaintiffs contend that they have suffered loss of their "economic freedom", and loss of property. Plaintiffs also claim that they were threatened with arrest or confiscation of their goods if they failed to abandon their former vending locations, though no plaintiff alleges that he or she is defying the City's order to relocate, or that he or she is currently threatened with arrest or confiscation of goods.

 The plaintiffs also allege that the enforcement of Section 9-204 has reduced the number of African-American street vendors in Center City from around twenty-five to a present total of nine or ten (a reduction of at least 60%), while the total number of Center City vendors was reduced from around 500 to a little over 300 (a reduction of only about 40%). *fn2"

 DISCUSSION

 Preliminary Injunction Standards

 In order to obtain a preliminary injunction, plaintiffs must show both a reasonable likelihood that they will prevail on the merits of their claim, and that they are likely to suffer irreparable harm in the absence of an injunction. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990). The district court should also consider the probable effects of a preliminary injunction on unrepresented parties, as well as the public interest. Id. The district court is not required to hold an ...


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