by Gary Taylor
Anthony Browne v. City of Iowa City
(Iowa Court of Appeals, February 19, 2014)
The city of Iowa City denied Anthony Browne’s application for a mobile vending cart permit. He was one of eight applicants vying for six available permits to operate downtown. The city created a matrix to score the applications. One of the criterion in the matrix was past satisfactory experience working with Iowa City. Because Browne had no prior experience with the city he received a low score on that criterion. He ultimately finished seventh out of the eight applicants. Browne requested and was granted a licensing hearing before the city council. In the process he was provided with all emails and other communications concerning the permitting process. The city council affirmed the denial.
Browne argued that the city violated his due process rights by, among other things, including what he referred to as a “seniority criterion” into the matrix and not giving him credit for successful experience working in other communities. The district court ruled in favor of the city and the Court of Appeals affirmed. Reviewing multiple federal and state cases, the court found that Browne has no constitutionally protected liberty or property interest in his unilateral expectation to receive a mobile vending permit.
Any right plaintiff has to earn a living through a food cart, like other intangible employment rights, arises from state law and does not spring from the fundamental guarantees of the Constitution. Municipalities in the United States have a history of stringently regulating or even prohibiting food cart vendors; thus, the right to freely operate a food cart is not “deeply rooted” in our Nation’s history and traditions. Nor is the right to freely operate a food cart implicit in our concept of ordered liberty. Therefore, the court finds that plaintiff fails to allege a property right that is protected by the Constitution and does not state a substantive due process cause of action as a matter of law.
The court went further to state that even if he had such an interest, he was afforded appropriate process, including notice, full disclosure, of all city communications regarding the permitting process, and the opportunity to be heard.