have been revoked, but only that they have been removed from their customary vending locations. The plaintiffs' licenses, issued under Philadelphia Code § 9-205, gave them a protected interest vending, but did not entitle them to do so in any particular location. Section 9-205 creates a general license to vend anywhere within the City limits, except where prohibited by existing or future ordinances. Philadelphia Code § 9-205(p). The new ordinance restricted vending in Center City while continuing to permit vending elsewhere; this action was consistent with the terms of the license granted under § 9-205. Because the plaintiffs do not have a protected property interest in their customary vending locations and have not lost their right to vend elsewhere in the City, they have no claim for deprivation without due process. Defendants are entitled to summary judgment as a matter of law on plaintiffs' due process claim.
2. Plaintiffs' Impairment of Contracts Claim
Article I, § 10 of the United States Constitution prohibits legislative impairment of a government's existing contractual obligation. The facts regarding plaintiffs' contract claim are not in dispute; the sole issue before me is whether the unrestricted vending licenses created by § 9-205 of the Philadelphia Code form a contract between the plaintiffs and the City. In other words, do the licenses created by § 9-205 afford plaintiffs a right to vend in Center City that cannot be impaired by subsequent City regulation?
Absent "clear, unequivocal language to the contrary, an ordinary business license is not considered to be a contract between a government and private parties." Kennedy v. Hughes, 596 F. Supp. 1487, 1495 (D. Del. 1984). Although a municipality may bargain away its right to control its streets, it will not be found to have done so unless it has bound itself by clear and unequivocal terms. City of St. Louis v. United Ry. Co., 210 U.S. 266, 273-74, 52 L. Ed. 1054, 28 S. Ct. 630 (1908). In issuing the plaintiffs licenses under § 9-205, the City did not surrender its right to restrict vending in Center City. Section 9-205 neither states an inalterable right to vend anywhere in Philadelphia, nor entitles a vendor to establish and preserve a customary vending location. In fact, that Ordinance specifically states that the licensee is prohibited from vending in a long list of enumerated locations "or any other location which the [City] Council shall from time to time ordain." § 9-205(p). The plaintiffs' licenses, therefore, do not give them an enforceable contractual right to continue to vend in Center City, and the Contracts Clause of the Constitution does not forbid the subsequent limitation of those licenses.
3. Plaintiffs' Equal Protection Claim
Plaintiffs brings two claims under 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment: a) that § 9-204 was enacted with the intent to reduce the number of African-American street vendors in Center City; and b) that the ordinance was deliberately implemented in a manner designed to deny notice of the application process to African-American vendors and deny them access to the space allocation process.
A. The claim that § 9-204 was enacted with a discriminatory intent
Section 9-204 is not discriminatory on its face, but has had a disproportionate effect on African-American sidewalk vendors. A facially neutral law which disproportionately and adversely affects a racial minority does not, of itself, violate the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 240, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). To survive summary judgment on their claim that the ordinance was designed to reduce the number of African-American vendors in Center City, therefore, plaintiffs must show that a reasonable fact-finder could determine that the City was aware of the likely disparate impact on African-Americans and that it selected or reaffirmed the ordinance at least in part because of and not merely in spite of the expected result. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979).
Plaintiffs have produced no evidence, either at the preliminary hearing or since the hearing, that City officials knew or should have known § 9-204 would exclude African-American vendors in disproportionate numbers, or that the Ordinance was enacted for that reason. I will, therefore grant summary judgment on this claim because plaintiffs have not met their burden of showing that the Ordinance was intended to have a disparate impact.
B. The claim that the Department deliberately implemented § 9-204 so as to exclude African American vendors from Center City
In order to maintain their § 1983 claim that the Ordinance was enforced in a racially discriminatory manner, plaintiffs must present enough evidence to allow a reasonable fact-finder to determine that the plaintiffs were treated differently than other vendors who are not African-American, and that the different treatment was directed or approved by the City's "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
A municipality cannot be held liable for its employees' unconstitutional acts unless those actions were taken pursuant to municipal policy, custom or usage. Id.
The plaintiffs presented some anecdotal evidence that unnamed inspectors from the Department skipped over African-American vendors when distributing flyers about the new license. The plaintiffs have presented no evidence that these episodes reflected a City policy to discriminate against African-American street vendors. The City, on the other hand, has produced testimony and affidavits which demonstrate that there was no discrimination by the City in the enforcement of the Ordinance. Gerald Richards, the supervisor of the inspectors who allegedly skipped over African-American vendors, testified at the preliminary injunction hearing and by affidavit that the inspectors were directed to speak with all vendors. Lucille Howard, the analyst who oversaw the space allocation procedure, testified at the hearing and by affidavit that the allocations were made solely on the basis of seniority. Plaintiffs have failed to challenge this evidence. Because the Department may not be held liable under § 1983 without evidence that there was a Department policy or custom of discrimination, the defendants are entitled to summary judgment on the plaintiffs' equal protection claim.
AND NOW, this 23rd day of August 1994, upon consideration of the defendants' motion for summary judgment and plaintiffs' response, it is ORDERED that defendants' motion for summary judgment is GRANTED as to all of the plaintiffs' claims.
Anita B. Brody, J.