concern that would be furthered by barring sales of machine-made leather goods, pottery, or quilts, but not their handmade counterparts.
Yet as pointed out earlier, the court may strike the regulations challenged as violative of the equal protection guaranteed under the fifth amendment only if they can be justified under no conceivable rationale. Clearly, it would have been within the authority of the District to ban all street sales of merchandise in order to protect consumers from sales of shoddy merchandise by itinerant street vendors, to reduce congestion on the city's sidewalks, or to prevent the city's business district from taking on a "bazaar atmosphere" or for other aesthetic reasons. At the same time, the city could have taken account of the fact that street vendors who make their own goods for sale would be left with few or no retailers who would be willing to purchase handmade goods for resale, and exempted those vendors from the general ban on sales of merchandise that could have otherwise been imposed. The fact that the city could have furthered its underlying purpose -- that of eliminating merchandise sales on the city's streets -- more completely does not warrant a conclusion that the method it chose is unconstitutional. See Baldwin, 436 U.S. at 390, 98 S. Ct. at 1864; McGowan v. Maryland, 366 U.S. 420, 425-27, 81 S. Ct. 1101, 1104-06, 6 L. Ed. 2d 393 (1961). As the Court has repeatedly held over the past four decades, equal protection does not require that all evils of the same type be eradicated or none at all. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 110, 69 S. Ct. 463, 466, 93 L. Ed. 533 (1949). Therefore, plaintiff's fifth amendment challenge to the merchandise restrictions in section 515.18(g) must be denied.
Plaintiff apparently does not argue that the difference in the size of the bond between residents and nonresidents violates equal protection; rather, it contends that imposition of a bond on street vendors but not on store front vendors denies street vendors equal protection. The contention that any difference in the treatment of street vendors and shopkeepers violates vendors' equal protection rights is wholly without merit. If any one principle can be gleaned from the past several decades of equal protection jurisprudence, it is that the Constitution permits considerable flexibility in distinguishing among groups so long as those distinctions implicate neither a suspect classification nor a fundamental right.
Even if plaintiff's challenge to the bond requirement is considered in terms of the resident/nonresident distinction, the court's ruling that section 524.2(b) violates the commerce clause renders a further examination of this provision under the equal protection clause unnecessary.
3. Section 508.3
Finally, with regard to plaintiff's due process challenge to section 508.3, the court is unable to render an opinion as to the constitutional validity of that provision at this time. Under section 508.3, a vendor's license is subject to immediate seizure if he fails to make records of sales and receipts of purchases and expenses available for inspection. See §§ 508.1, 508.2, 508.3. Plaintiff contends that its members' rights to due process entitle them to a pre-revocation hearing. Defendants and amici respond that a section 508.3 seizure is not a final deprivation; rather, section 508.4 provides that any license seized must be returned as soon as the vendor submits the records and receipts required to be kept under section 508.
Although it is a truism that " some form of hearing" is required before an owner is finally deprived of a significant property interest,
both the timing and the nature of the required hearing depend on " 'appropriate accommodations of the competing interests involved. '"
Those competing interests include the importance of the private interests involved, the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved. Logan, 455 U.S. at 434, 102 S. Ct. at 1157. Although it may be conceded that the right to engage in their livelihood is of significant importance to street vendors, amici contend that the deprivation is brief, since the license must be returned upon submission of the required records and receipts; little discretion is involved so that the likelihood of government error is minimal; and the government's interest in tax collection is substantial. See Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 595-97, 51 S. Ct. 608, 611, 75 L. Ed. 1289 (1931) ("where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate").
Since the procedures for return of a seized license are not specified by the regulations, it is impossible to determine the length of deprivation or the adequacy of the procedures for the ultimate determination by the Mayor under section 508.4 at this time. Similarly, although defendants argue that the likelihood of error is small since little discretion is involved, it is not clear that police officers will be able to make consistent determinations as to the "sufficiency" of the records of sales and receipts that must be made available under section 508.1. Indeed, the regulation itself does not specify for what purpose the records must "suffice."
In sum, the issue of the constitutional adequacy of the post-seizure hearing that the District will provide is not yet ripe for judicial determination. Since a pre-seizure hearing is not necessarily required by due process, and since the court could only guess as to how section 508 will ultimately be enforced, a ruling at this time would merely constitute an advisory opinion regarding what the law would be on a hypothetical state of facts. Because this issue has not yet ripened into a justiciable controversy through actual enforcement, therefore, the court is unable to render an opinion on the constitutional validity of section 508.3.
C. Vagueness and ambiguity
Finally, plaintiff challenges three regulations on the ground that they are vague and ambiguous and thus violate its members' due process rights. Plaintiff claims that § 508.1, which requires vendors to make records of sales and receipts available for inspection "to any authorized representative of the District of Columbia Government" is unconstitutionally vague because it "could be interpreted" to mean that any official, agent, or servant of the District has the authority to demand a vendor's records and seize his license for nonproduction. Sections 510.3 and 510.4, which restrict street vendors to sidewalks which are at least eighteen feet wide and provide rules for measuring sidewalks to determine if they meet minimum width standards, are challenged as unconstitutionally vague on the ground that §§ 515.1 to 515.16, which specify the sections of the city where vending is permitted, do not list the sidewalks which are at least eighteen feet wide.
The Supreme Court has made it clear that a plaintiff bringing a pre-enforcement facial challenge to an ordinance on the ground that it is unconstitutionally vague bears a heavy burden. Assuming that the ordinance implicates no constitutionally protected conduct, such as freedom of speech, a court examining a facial vagueness challenge "should uphold the challenge only if the enactment is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 497, 102 S. Ct. 1186, 1191, 1193, 71 L. Ed. 2d 362 (1982). In evaluating a business regulation for facial vagueness, the court held, "the principal inquiry is whether the law affords a fair warning of what is proscribed. Moreover, this emphasis is almost inescapable in reviewing a pre-enforcement challenge to a law." Id. at 503, 102 S. Ct. at 1195-96.
In evaluating the challenged regulations under these standards, it seems clear that neither the regulation on enforcement nor the regulations on location are void for vagueness. As amici point out, any potential problem with §§ 510.3 and 510.4 is cured by reading those provisions together with §§ 515.1 to 515.16, which specify the areas within which vending is permitted and particular areas where vending is barred. All a vendor need do is first determine whether vending is permitted in the area within which he intends to sell his wares, and then make sure that the particular sidewalk on which he intends to place his cart meets the minimum width requirements of section 510.3, as measured pursuant to section 510.4. It would be impossible for this court to declare that the language of §§ 510.3 and 510.4 is so vague and amorphous as to render it unconstitutional. See Hoffman Estates, supra. Although the particular measurements required by section 510.4 may pose some threat of inconsistent or arbitrary enforcement, the court is not free to assume that the District will not take further steps to particularize or standardize the methods used to measure minimum sidewalk widths should such problems arise. The city may well "adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the" regulation. See Hoffman Estates, 455 U.S. at 504, 102 S. Ct. at 1196. " 'Although it is possible that specific future applications . . . may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. '" Id. (quoting Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 86 S. Ct. 1254, 1264, 16 L. Ed. 2d 336 (1966)).
Plaintiff's challenge to § 508.1 is only slightly more substantial. In evaluating a facial challenge to an ordinance, the court must consider any "limiting construction" that the city has offered. Id., 455 U.S. at 494 n.5, 102 S. Ct. at 1191 n.5. Here, defendants and amici point to section 501.12's implicit limitation on section 508.1's provision for inspection by "any authorized representative." Under section 501.12, "the Metropolitan Police Department shall have primary responsibility for the enforcement of vending regulations, pursuant to Mayor's Order 82-186." Mayor's Order 82-186 provides that the Chief of Police is delegated the authority vested in the Mayor for District-wide enforcement of the regulations governing street vending. Defendant's Exhibit B. Therefore, defendants contend, the reference to "any authorized representative" in § 508.1 is vague neither on its face nor in any probable application. Because plaintiff has failed to demonstrate any credible threat of enforcement of § 508.1 by council persons, school board members, garbage collectors, or any of its other "wild hypotheticals," the facial vagueness challenge must fail. See Electrolert Corp. v. Barry, 237 U.S. App. D.C. 328, 737 F.2d 110, 114 (D.C. Cir. 1984).
The court's conclusion that most of the regulations at issue here withstand plaintiff's challenges under the commerce clause and fifth amendment guarantees of equal protection and due process should not be construed as an indication that the court is without sympathy for the individuals whose livelihood may be threatened by the actions of the District of Columbia. But as the Supreme Court pointed out in Williamson v. Lee Optical, the day is long gone when courts may "strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." 348 U.S. 483, 488, 75 S. Ct. 461, 464, 99 L. Ed. 563 (1955). " 'For protection against abuses by legislatures,' " the Court emphasized, " 'the people must resort to the polls, not to the courts. '" Id., 75 S. Ct. at 464-65 (quoting Munn v. State of Illinois, 94 U.S. 113, 134, 24 L. Ed. 77 (1876)).
Plaintiff's complaints are essentially political ones. As plaintiff's counsel himself has candidly admitted, the union's members are "dissatisfied with the results of the legislative process, [and] would now have the Court interject its judgment as to the propriety of the regulations." Opposition to Amicus at 1. Yet literally scores of cases decided since the New Deal have made it clear beyond any doubt that the judiciary is without authority to substitute its judgment for that of the legislature. Regardless of whether the court thinks the challenged regulations "unwise or improvident," all but section 524 are able to pass constitutional muster.
An appropriate Order accompanies this Memorandum.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 608 F. Supp.]
This matter comes before the court on cross-motions for summary judgment on plaintiff's challenge to the constitutionality of certain regulations enacted by defendants to restrict the operations of street vendors in the District of Columbia. For reasons discussed in the accompanying Memorandum, filed by the court this date, it is by the court, this 10th day of May, 1985,
ORDERED that the motion for leave to file brief amicus curiae in support of defendants is granted; and it is further
ORDERED that plaintiff's motion for summary judgment on its commerce clause, equal protection, and due process challenges to 24 D.C.M.R. §§ 502.11, 508.1, 508.3, 510.3, 510.4, 511.1, 512.2, 515.18(g), and 524.1 is denied, and defendants' motion for summary judgment as to those sections is granted; and it is further
ORDERED that plaintiff's motion for summary judgment on its commerce clause challenge to 24 D.C.M.Y. § 524.2(b) is granted, and defendants' motion for summary judgment on plaintiff's challenge to that regulation is denied.