The opinion of the court was delivered by: ANITA B. BRODY
The issue before me is whether defendant City of Philadelphia is entitled to summary judgment on the plaintiffs' claims that a recently implemented City ordinance limiting sidewalk vending in Center City Philadelphia violated their rights under the Fourteenth Amendment and Article I of the United States Constitution. I will grant summary judgment on the due process and impairment of contracts claims because the plaintiffs have not shown that they hold either a protected property interest or a contractual right in their customary vending locations. I will grant summary judgment on the equal protection claim because plaintiffs have presented no evidence that the City Ordinance was enacted with a racially discriminatory purpose or enforced in a racially discriminatory manner.
On December 30, 1993, plaintiffs, a group of African-American sidewalk vendors, filed a complaint under 42 U.S.C. § 1983, on behalf of themselves and others similarly situated,
challenging the implementation of Philadelphia Code § 9-204. Plaintiffs sought a preliminary injunction, asserting that: 1) the ordinance deprived them of property without due process of law; 2) the City's actions violated the constitutional prohibition against legislative impairment of contracts; and 3) the ordinance was both enacted with a racially discriminatory purpose and enforced in a racially discriminatory manner. I held an initial hearing on the motion, at which I heard argument but did not take evidence. I then issued Lindsay v. City of Philadelphia, 844 F. Supp. 229 (E.D. Pa. 1994), ("Lindsay I "), in which I declined to issue a preliminary injunction on the grounds of plaintiffs' first two claims and ordered an evidentiary hearing on their equal protection claim.
After the evidentiary hearing, I made findings of fact and denied plaintiffs' motion for preliminary injunction because plaintiffs had failed to demonstrate that they had a reasonable likelihood of succeeding on their equal protection claim. Lindsay v. City of Philadelphia, 844 F. Supp. 224 (E.D. Pa. 1994), ("Lindsay II ").
Plaintiffs admit that they have failed to respond to the defendants' discovery requests and that they have produced no new evidence since the preliminary injunction hearing. I will, therefore, make my decision based on the evidence before me: my findings of fact from the hearing held on January 18, 1994, which are summarized here and set out in full in Lindsay II, 844 F. Supp. 224, 226-28, and the affidavits offered by defendant, which restate the testimony given at the hearing.
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.
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. That ordinance limited to 300 the number of vendors that could sell in the Center City area. The Ordinance narrowed the scope of the prior ordinance, Philadelphia Code § 9-205, which allowed holders of a sidewalk sales license to vend anywhere in the City. Philadelphia's Department of Licenses and Inspections (the "Department") is responsible for implementing § 9-204.
Under § 9-204, vending locations in Center City were allocated according to the length of time that a vendor, then holding a valid license, had been vending at or near that location. The Ordinance did not specify how notice was to be given of the new licensing requirements. Applications for Center City vending licenses became available and were advertised beginning on February 16, 1993. The deadline for filing Center City vending applications was March 12, 1993.
In September 1991, May 1992, and again in October 1992, inspectors from the Department conducted surveys to identify current Center City sidewalk vendors. The inspectors noted the names, addresses, type of goods, and license numbers of the vendors. Affidavit of Lucille Howard at P 3; Affidavit of Gerald L. Richards, Jr. at P 5. The inspectors were instructed to talk with all vendors. From those surveys the Department compiled a list of 426 sidewalk vendors, to whom the Department mailed applications and information regarding the new license on February 5, 1993. The Department did not mail notices or application forms to all holders of sidewalk vending licenses.
The Department received 349 applications for Center City vending licenses. Fifteen were disqualified due to invalid tax numbers or sidewalk sales license numbers, ...