U.S. District Judge Thomas A. Flannery upheld the constitutionality yesterday of all but one of the District's new rules governing street vendors, clearing the way for their imposition next Wednesday.
The regulations, opposed as too restrictive by many vendors and too lenient by some business groups, will curtail the types of merchandise sold on D.C. streets, limit the number of vendors from the current estimate of 5,200 to 4,366 and require vendors to sell their food and wares from wheeled carts, not card tables or storage crates.
Flannery, ruling in a suit brought against the regulations by Local 82 of the Service Employees International Union, overturned only one provision, a requirement that non-D.C. residents post a $1,500 bond to obtain a vending license while D.C. residents would have to post only a $500 bond.
The city had claimed that the provision was justified to ensure that nonresident vendors paid city sales taxes on goods they sold in the District. But the judge ruled that the city "has not . . . offered any evidence that the treble bond for nonresidents is justified for purposes of sales tax collection."
Kwasi Holman, executive director of the city's Office of Business and Economic Development, said District legal officials and others are reviewing the bonding question and hope to alter it in some fashion by early next week before the regulations take effect.
"The court decision certainly reaffirms our belief that the regulations are equitable," Holman said. "We have told union officials that we would work with them to implement the program in a positive fashion."
Holman's office, along with the City Council, approved the new regulations in an effort to reduce sidewalk congestion, particularly on downtown streets where vending has impeded pedestrian traffic, to better protect consumers and to improve sales tax collections.
The union local, whose 5,000 members include 200 street vendors, opposed the regulations on grounds that they restrict the vendors' ability to do business as they wish and unfairly benefit store merchants.
Kwasi Abdul Jalil, a street vendor and chairman of Local 82's vendors division, said, "We're definitely going to appeal to the U.S. Court of Appeals . What the judge is saying is that the city can make any laws it wants. The judge did not make a moral judgment on the city's ethics."
J. Lincoln Woodard, the lawyer who represented the union, said Flannery was "clearly in error" in ruling that most of the provisions were constitutional.
Flannery said he was "not . . . without sympathy for the individuals whose livelihood may be threatened by the actions of the District of Columbia."
But he said the vendors' "complaints are essentially political ones," to be decided by legislative bodies, such as the City Council.
"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," Flannery said. "Regardless of whether the court thinks the challenged regulations 'unwise or improvident,' all but the bonding provision are able to pass constitutional muster."
The regulations will limit sidewalk sales to what the city calls "more traditional vending goods: ready-to-eat foods, produce, plants, art, newspapers, novelties and hand-made items."
No longer will vendors be able to sell such manufactured items as clothing, other than T-shirts, or appliances, luggage and kitchen products that can be readily found in stores.
Flannery said "the restrictions on merchandise are more troubling than any of the other regulations on equal protection or due process grounds."
But the judge said the fact that the city chose to limit street sales rather than ban them "does not warrant a conclusion that the method it chose is unconstitutional."
No one knows exactly how many street vendors currently work in downtown, but the new rules place a limit of 2,900 on the number of vending licenses issued for the downtown area, 1,310 in neighborhoods and 156 on roadsides.
The rules also require every vendor of nonfood items to have a wooden cart made of pressure-treated lumber, with wheels.
In addition, street vending will be limited to the period between 5 a.m. and 10 p.m. Sunday through Thursday, with the hours extended to 1 a.m. on Saturday and Sunday mornings.