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KAEHLY v. CITY OF PITTSBURGH

December 17, 1997

CHARLES KAEHLY, et al., Plaintiffs,
v.
CITY OF PITTSBURGH and STADIUM AUTHORITY OF THE CITY OF PITTSBURGH, Defendants.



The opinion of the court was delivered by: BLOCH

MEMORANDUM OPINION

 BLOCH, District J.

 Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth in this opinion, the Court will grant defendants' motion and deny plaintiffs' motion.

 I. Background

 Each of the plaintiffs were issued a vending license which expired on or about January 31, 1996, by defendant City of Pittsburgh (City) pursuant to City of Pittsburgh Ordinance No. 719 (Ordinance No. 719). In December 1995, defendant City amended Ordinance No. 719 effective December 15, 1995, to, inter alia, prohibit vending on or within thirty feet of Three Rivers Stadium property. Prior to its amendment, Ordinance No. 719 permitted vending on Three Rivers Stadium property, provided that vendors remained at least 250 feet from the outside wall of the stadium.

 Three Rivers Stadium property is owned and controlled by defendant Stadium Authority of the City of Pittsburgh (Stadium Authority). Daniel Onorato is both a Pittsburgh City Council member and a member of defendant Stadium Authority. Onorato was the sponsor of Bill No. 2601 which amended Ordinance No. 719.

 The Stadium Authority is party to an exclusive Concession Services Agreement (CSA) with Pittsburgh Stadium Concessions, Inc. The CSA, which currently extends until December 31, 1998, grants Pittsburgh Stadium Concessions, Inc., the exclusive right and privilege to sell food, beverages and related services to the public at locations on Stadium Authority property.

 Plaintiffs contend that the effect of amending Ordinance No. 719 was a revocation of their vending licenses because the vast majority of plaintiffs' vending revenue was generated while vending on Three Rivers Stadium property. Accordingly, plaintiffs filed the within action alleging: (1) deprivation of plaintiffs' substantive due process rights under the Pennsylvania and United States Constitutions (Counts I and VI); (2) deprivation of plaintiffs' procedural due process rights under the Pennsylvania Constitution (Count II); (3) deprivation of plaintiffs' right to equal protection under the Pennsylvania and United States Constitutions (Counts III and VIII); (4) a violation of federal antitrust laws (Count IV); (5) a violation of 42 U.S.C. ยง 1983 (Count V); and (6) a violation of Article II, section 1 of the Pennsylvania Constitution (Count VII). In addition, plaintiffs seek an injunction permitting them to vend on Three Rivers Stadium property in accordance with Ordinance No. 719 as it existed prior to the December 1995 amendment.

 II. Summary judgment standard

 Summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990).

 The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052 (1987). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that "the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Id.; Celotex, 477 U.S. at 322.

 In this case the parties agree that there are no material issues of fact in dispute. Accordingly, resolution of this case by summary judgment is appropriate.

 III. Discussion

 A. Plaintiffs' substantive due process claims

 In Counts I and VI of their complaint, plaintiffs contend that defendants, by amending Ordinance No. 719, deprived plaintiffs of a property interest in violation of plaintiffs' substantive due process rights. To state a valid claim for deprivation of substantive due process, a plaintiff must set forth a protected property interest. See, e.g., Independent Enterprises, Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1177-1180 (3d Cir. 1997); Mims v. Shapp, 744 F.2d 946, 949 (3d Cir. 1984). While conceding that a vending license may constitute a protected property interest, defendants, relying upon Lindsay v. City of Philadelphia, 863 F. Supp. 220, 223-24 (E.D. Pa. 1994), contend that there is no constitutionally protected property interest to vend in a particular location. Thus, it is defendants' position that because Ordinance No. 719 merely restricted the area in which plaintiffs could vend, plaintiffs have not been deprived of a protected property interest and, consequently, that their due process claims must fail.

 Plaintiffs counter defendants' position by arguing that they are not seeking exclusive rights to vend on Three Rivers Stadium property; rather, plaintiffs allege that by amending Ordinance No. 719, defendants "effectively" revoked plaintiffs' licenses by prohibiting them from vending anywhere on Stadium Authority property where plaintiffs allegedly earn the majority of their income. In other words, plaintiffs contend that Ordinance No. 719, in effect, has deprived plaintiffs of their ability to vend as an occupation.

 This Court has concluded, however, that even if plaintiffs have set forth a protected property interest, which is an issue that this Court need not decide, plaintiffs' substantive due process claims must fail as Ordinance No. 719 is rationally related to a legitimate state interest. See, e.g., United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997) (where suspect classifications or classifications affecting fundamental rights are not involved, "economic and social legislation is subject to rational basis review, under which a law need only be rationally related to a legitimate state interest.") (quoting Tolchin v. Supreme Court of New Jersey, 111 F.3d 1099, 1113 (3d Cir. 1997) (internal quotation omitted)), cert. denied 139 L. Ed. 2d 334, 118 S. Ct. 435, 1997 WL 457725 (1997). See also Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855 (1996) ("If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end."). *fn1"

 It is within the city's police power to determine whether the practice of vending requires regulation. City of New Orleans v. Dukes, 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976) (per curium). Once a city decides that regulation is required, the city is entitled to great deference in determining what problems it wishes to address, and how it wishes to address them. Id. at 303. "In the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." Id. at 303-04 (citation omitted).

 This Court has reviewed all the exhibits offered by the parties, which include transcripts of certain Pittsburgh City Council legislative sessions at which the then-proposed amendment to Ordinance No. 719 was considered. The transcripts of those hearings demonstrate that Council considered many issues in amending Ordinance No. 719, including, as plaintiffs allege, an interest in maximizing profits in order to keep the Pirates *fn2" and the Steelers *fn3" in Pittsburgh as well as a concern about lowering the taxpayer's burden with regard to the substantial cost of maintaining the stadium. In particular, several councilpersons expressed a concern that independent vendors on Three Rivers Stadium property were taking sales away from the Stadium Authority's contracted vendors due to the fact that independent vendors such as plaintiffs, who do not pay a percentage of their proceeds to the Stadium Authority, are able to sell goods at a substantially lower price. Because Three Rivers Stadium is a public facility funded by tax dollars, the less income generated at Three Rivers Stadium, the higher the burden that falls upon the individual taxpayer.

 Revenue production is a legitimate state interest. See Allright Colorado v. City and County of Denver, 937 F.2d 1502, 1512 (10th Cir.) (regulations governing off-airport shuttle parking services were rationally related to legitimate governmental objectives in, inter alia, raising revenue), cert. denied, 502 U.S. 983, 116 L. Ed. 2d 612, 112 S. Ct. 587 (1991); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367, 373 (11th Cir. 1987) ("Revenue raising is undoubtedly a legitimate and substantial governmental objective.") (citing Gannett Satellite Information Network, Inc. v. Metropolitan Transp. Auth., 745 F.2d 767, 775 (2d Cir. 1984); Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (1974) (plurality)), cert. denied, 484 U.S. 1063 (1988); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1289 (9th Cir. 1985) (exclusive franchise agreement between airport and business which sold gifts to tourists was rationally related to legitimate state interest in producing revenue and maintaining security and traffic control), cert. denied 475 U.S. 1081, 89 L. Ed. 2d 715, 106 S. Ct. 1457 (1986). Furthermore, the amendments to Ordinance No. 719 are rationally related to the goal of increasing revenues as it is likely that the Stadium Authority's contracted vendors will generate more sales if independent vendors are permitted to vend only on the periphery of Stadium Authority property.

 Moreover, the legislative sessions transcripts indicate that, in amending Ordinance No. 719, Pittsburgh City Councilpersons were also concerned about traffic control on Three Rivers Stadium property. More specifically, it appears that under the existing interpretation of Ordinance No. 719 in December 1995, more and more independent vendors had moved closer to the stadium to vend on and at the bottom of entrance ramps. A concern for controlling the flow of traffic constitutes a legitimate governmental interest, and the amendment to Ordinance No. 719 is reasonably related to alleviating congestion and overcrowding. By limiting the vendors permitted to vend on Three Rivers Stadium property to those who have contracted with the Stadium Authority, defendants are able to greatly reduce the number of vendors on Three Rivers Stadium property, thereby reducing threats to the safe and orderly flow of pedestrian traffic, a concern which is particularly great during high-attendance events, such as All-Star games or sports playoffs.

 "Governmental bodies have wide latitude in enacting social and economic legislation; the federal courts do not sit as arbiters of the wisdom or utility of these laws." Allright Colorado, Inc. v. City and County of Denver, 937 F.2d at 1512 (internal quotation marks and citations omitted). "It is up to legislatures, not courts, to decide on the wisdom and utility of legislation." Ferguson v. Skrupa, 372 U.S. 726, 729, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963). "For protection against abuses by legislatures the people must resort to the polls, not to the courts." Williamson v. Lee Optical Co. of Oklahoma, Inc., 348 U.S. 483, 487-88, 99 L. ...


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