JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.
Plaintiffs are Ego Brown, a self-styled "shoeshine entrepreneur," and Willie Armstrong and Ernest James Lee, two homeless individuals whom Mr. Brown employed as "independent contractors" in his shoeshine enterprise. For some years prior to 1985 Mr. Brown operated an outdoor shoeshine business at various locations in the District of Columbia. He conducted this business under the auspices of a general vending permit issued by the District of Columbia. This permit was issued pursuant to the District of Columbia Municipal Regulations, Title 24,
Chapter 5 which regulates vending and soliciting practices.
Mr. Brown began to employ homeless persons in the District, providing them with showers, shoeshine kits, and training. Mr. Brown's efforts achieved some notoriety and the District's Department of Social Services began referring homeless persons to him. However, in 1985 the District of Columbia, in a sharp reversal of position, withdrew Mr. Brown's vending permit and closed his sidewalk shoeshine business as an alleged violation of another District of Columbia Municipal Regulation enacted over eighty-three years ago. This is found in Title 24, Chapter 1, Section 112.4 which provides that "no permit shall be issued for a bootblack stand on public space."
For some time after his vending permit was suddenly revoked Mr. Brown attempted to conduct his shoeshine business in rented public space. However, in March 1988, because of rising costs due to inability to use public space, Mr. Brown, joined by two former employees, filed this action for declaratory judgment and injunctive relief against the District of Columbia and its Department of Consumer and Regulatory Affairs. It seeks the court's declaration that this regulation is unconstitutional, and an injunction barring its enforcement. Plaintiffs assert two Equal Protection challenges.
First, they allege that the regulation, which exists largely as an exception to the general vendor provisions and which prohibits the issuance of vendor's permits only to bootblacks, makes irrelevant and, therefore, constitutionally impermissible distinctions between similarly-situated street vendors. Plaintiffs contend that a bootblack stand would require less space than that permitted under D.C. vending regulations, and that a bootblack would create less litter and congestion than most other types of vendors.
Plaintiffs also argue that the District's present vending provisions, which contain a multitude of time, place, and manner restrictions, adequately protect the public from unreasonable interference caused by bootblack stands on public space. Plaintiffs assert that prohibiting this subclass of vendors from using public space is in no way rationally related to any legitimate government purpose and fails to pass constitutional muster.
Secondly, and in the alternative, plaintiffs assert that this regulation, although facially neutral, is rooted in racial animus. Plaintiffs allege that at the time the prohibition was adopted in 1905 shoeshine stands in the District of Columbia were operated almost exclusively by blacks, and that this regulation is nothing more than a vestige of the Jim Crow era when laws were intentionally designed to thwart the economic self-sufficiency of blacks. In fact the post Civil War era is replete with examples of state and federal legislation sanctioned by the Supreme Court that was intended to disable the effects of the Civil Rights Act of 1871 and the Fourteenth Amendment. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). Plaintiffs suggest that evidence of pervasive racial discrimination, although circumstantial as to this particular regulation, raises the specter of invidious racial motivation. Plaintiffs' argument, despite its problems of proof, has a certain appeal and is not without merit. However, because we find that this regulation cannot withstand even the lowest Equal Protection scrutiny we find it unnecessary to reach the merits of plaintiffs' alternative ground.
The main thrust of plaintiffs' attack is that this regulation is an irrational and discriminatory classification among similarly situated persons. On its face and in its context it is an economic regulation of a single type of local business. Once the constitutionality of an economic regulation is challenged, it is well settled that the fundamental constitutional principle a court must follow is that "all persons similarly situated" must be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Our Equal Protection analysis need only focus on whether the classification is rationally related to a legitimate government purpose. In pursuing this analysis, we recognize that we are confronted at the outset with a vast body of precedent requiring that we give deference to the expressed objectives of the legislature. As a result, a court's review of a pure economic regulation has been called the "toothless rationality test," and has often amounted to little more than a rubber stamp to the legislation's purported objective. See Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488, 99 L. Ed. 563, 75 S. Ct. 461 (1955) (holding that "it is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it"). Adherence to this principle of deference is demonstrated by the fact that since 1937 most constitutional challenges to economic and social regulations have failed. See Long Island Lighting Co. v. Cuomo, 666 F. Supp. 370, 410 (N.D.N.Y. 1987). It is not necessary to recite the litany of precedent upholding challenged legislation under the "rational basis" test. However, the once strictly delineated deference principle has experienced some anomalous applications. City of New Orleans v. Dukes, 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976) (per curiam) demonstrates inconsistencies that are inherent in this standard of review and the difficulties a court could encounter if it strictly applied the principle to a challenged regulation. In a case involving a New Orleans vending ordinance that prohibited all push-cart food sales in the French Quarter, but exempted food vendors who had operated in the French Quarter for more than eight years, the Supreme Court, in upholding this regulation, stated:
When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. . . . In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines . . . . (citations omitted) (emphasis supplied).