The opinion of the court was delivered by: ANITA B. BRODY
The question before me is whether, on the basis of an alleged violation of the Equal Protection Clause, the plaintiffs are entitled to a preliminary injunction to halt the implementation of an ordinance which regulates sidewalk vending in Center City Philadelphia, when the statute is facially neutral and there is no evidence of an intent or policy on the part of the City to disadvantage the plaintiffs because of their race. I hold that the plaintiffs are not entitled to the injunction.
The plaintiffs, a group of African American sidewalk vendors, filed their complaint and motion for preliminary injunction pursuant to 42 U.S.C. § 1983 on December 14, 1993. The plaintiffs claim that Section 9-204 was designed to reduce the number of African American sidewalk vendors in Center City, and that the manner of its implementation violated their constitutional rights in a number of ways. They allege that most of them have been forced to vacate the vending locations they had occupied for periods ranging from two to ten years, resulting in the reduction or loss of their businesses. On January 5, 1994, I entered an order declining to issue a preliminary injunction on the basis of the plaintiffs' due process and impairment of contracts claims and ordering an evidentiary hearing on the equal protection claim. After hearing the evidence and considering the arguments of counsel presented to me at the evidentiary hearing on January 18, 1994, I am prepared to rule on the issue of whether the plaintiffs' claim that Section 9-204 was enforced in a racially discriminatory manner entitles them to a preliminary injunction.
1) The plaintiffs are African-Americans who have engaged in the business of sidewalk vending in Center City Philadelphia for up to ten years.
Most of them have held sidewalk vending licenses in their own names at one time or another, though few have done so for the entire time they have been vending.
2) On December 4, 1990, the Mayor of Philadelphia approved Bill No. 1050-A, which created § 9-204 of the Philadelphia Code to regulate sidewalk vending in "Center City" Philadelphia. The Ordinance defines "Center City" as the area from Vine Street to Bainbridge Street, between the Delaware River and the Schuykill River.
3) Regulations for the implementation of § 9-204 were enacted pursuant to § 8-407 of the Philadelphia Home Rule Charter in June of 1992.
4) Prior to the implementation of § 9-204, sidewalk vending throughout the City was regulated by § 9-205 of the Philadelphia Code. Under that ordinance, a Philadelphia sidewalk sales licensee could vend anywhere in the City where vending was not prohibited. While no vendor was licensed for any particular location, in practice many vendors set up at the same location every day.
5) Under § 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 300.
6) Under § 9-204, vending locations in Center City are allocated according to how long a particular vendor has been vending at or near that location. Applicants who had vended at or near a particular location for at least two years prior to the enactment of the ordinance were ranked in order of seniority, and ties among those so ranked were resolved by lottery. Section 9-204 (8)(d)(.1).
7) Only people who held current sidewalk vending licenses and were currently vending in Center City were permitted to apply for the initial allocation of vending spots.
8) Applicants for Center City vending licenses were instructed to select five locations where they would be interested in vending. Section 9-204 (4)(a)(.3).
9) The ordinance does not specify how notice is to be given of the new licensing requirements.
10) Applications for Center City Vending licenses became available at the Department of Licenses and Inspections ("the Department") on February 16, 1993. The deadline for filing Center ...