Analyzing The Fast Food Zoning Case

Here is the way the law works. A city can pass any law (called an ordinance) that is designed to enhance the health, safety, welfare, aesthetics or morals of its citizens. This is called the "police powers."

Whether such a law is valid depends on what is being regulated. If the city is regulating the right to worship, or abortion or if the law address or restricts free speech (things that are deemed "fundamental rights") these laws will be subject to what they call a "strict scrutiny" analysis. This means, the law will only be deemed constitutional if the government can prove a compelling reason for the law and that the law is narrowly tailored and no other alternative lesser restrictive regulation was possbile. This is a very tough test for the government to meet and such laws are routinely struck down as being unconstitutional.

Now, the right to eat fast food/junk food I would say does not implicate any fundamental right (the Supreme Court has defined fundamental rights as rights essential to concept of ordered liberty) so I do not believe a strict scrutiny analysis would apply in this situation. I can't image eating a cheeseburger with vanilla shake and onion rings is a fundamental human right.

To the contrary, where the exercise of police power attempts to regulate or implicate merely social and economic affairs (like regulating traffic meters, stop signs, zoning regulations, etc.) then the test for constitutional validity is very different. In these circumstances, a person challenging the laws as being unconstiutional must prove that there is no rational basis for such law. This is known as the "rational basis" test. Note that in these circumstances, it is the challenger who now bears the burden of proof, rather than the government, to show that there is no rational basis for the law. If there is any conceivable rationale for enacting the law it will normally be upheld as the courts will defer to the wisdom of the legislature.

So, where there are fundamental rights at stake, only the most narrowly tailored law will suffice, but where the law regulates social and economic affairs, the govenrment will normally win (i.e. the law will be held constitutional) under the rational basis test.

It should be pointed out that there are other challenges a potential plaintiff could make in order to challenge the law as being unconstituional. In the case you sent me a restaurant owner would be a typical plaintiff. Here are but a few constitutional challenges:

(1) If the law is vague and ambiguous it can be struck down (one of the examples cited in the artilcle stated that a city wanted to prevent fast food in the "large downtown areas" (this is open to interpretation and could make the law invalid). In order to be valid, laws must clearly let the citizens and businesses know what's prohibited.

(2) An Equal protection challenge may also be appropriate. The equal protection clause is set forth in the 5th amendment to the United States constituion and made applicable to the individual states via the 14th amendment (i.e. the federal rights were selectively incorporated into the 14th amendment which ensures that the U.S. consittution is applicable to each of the individual States). Law must treat people and companies who are "similarly situated" in a fair and equal manner. Disparate treatment can be grounds for finding the regulation unconsitutional. Again, where fundamental rights are involved, the test is strict scrutiny. Where social/economic rights are involved, the rational basis test applies. Many laws discriminate in some small fashion against one group or another so the tests are basically good common sense.

In the article it was referenced that the law or ruling may apply only to chain restaurants. I would attack this is a violation of equal protection. Why just the chains? Junk food is served all over the place. Maybe they should outlaw desserts at all restuarants and take salt off the table?

(3) Substantive due process: much of the same analaysis mentioned in #2 above applies here. The same legal tests of validity apply. The botton line under this section is that the governement cannot enact laws which are "arbitrary and capricious". Seems there would be at least an argument to make here.

(4) Some dummy might argue violation of freedom of religion ("my religion insists that I eat junk food"). Once again, there are similar legal tests. This argument would likely fail unless such a plaintiff could establish that he sincerely holds this belief and such a religion is recognized. This is most likely a losing argument.

(5) Free speech: (the argument cited in the article), sounds like a loser to me. How does this limit your right to speak or otherwise express yourself? If you want to express your fat belly, you can go to the neighboring town and get a Macho Burrito, Fries, Coke Triple Sized. A food chain can also express themselves (and their super sized menu) in the outskirts of town.

Can they do it?: With all the above being said, what they are trying to do is to treat fast food restaurants like adult movie theaters (push them to the outskirts of town). If I owned a fast food restaurant I would file a lawsuit. But since I don't, and since I don't eat at these restaurants I could care less where they place them. If there is a rational basis for the law, which it appears there is a decent health argument to be made, it will probably be upheld. If nothing else, it's good publicity for the politican who presented it.

Should they do it?: I don't really care for this type of regulation under the guise of zoning and health. I believe people are smart enough to know what's best for them. Most people know a banana split will make you fat, especially if you don't exercise. They might as well just create a "flabby district" (zoning district) where these types of restaurants can happily exist until the end of time. I, however, have to agree with the legislator who termed it a "nanny state" if we permit this type of regulation.

Next thing ya know, the government will build state-sponsored gyms and health clubs and require everyone to show up and log 10 hours per month all on the taxpayer dollar. Whoops, I gotta go, ..I ordered pizza...just arrived.

Taco Bell? Not in my backyard!!!

FRANCHISING

Exiling the Happy Meal

Los Angeles Lawmakers Want to Escalate The War on Obesity (And Fast Food)

By SARAH MCBRIDE

Despite its health-crazy reputation, parts of Los Angeles are plagued by obesity rates that rival any city in America. Now, the city may join a growing roster of local governments aiming to put their residents on diets by cracking down on the fast-food industry.

In an effort to fight obesity, Los Angeles is proposing to ban fast food restaurants in one neighborhood, tapping into a tougher attitude toward fast food.

Jan Perry, a Los Angeles city-council member, is spearheading legislation that would ban new fast-food restaurants like McDonald's and KFC from opening in a 32-square-mile chunk of the city, including her district. The targeted area is already home to some 400 fast-food restaurants, she says, possibly contributing to high obesity rates there -- 30% of adults, compared with about 21% in the rest of the city. Nationally, 25.6% of adults are obese, according to the Centers for Disease Control and Prevention.

While some cities have bans on new fast-food establishments, they typically are for aesthetic reasons or to protect local businesses. Ms. Perry's initiative seems to be a rare instance in which a major city brings health issues into restaurant zoning. The fast-food ban would last a year, although Ms. Perry hopes to make it permanent. On Tuesday, a committee will make a recommendation on the measure before sending it on to the full city council for a vote.
With the ordinance, Los Angeles is tapping into a tougher attitude toward fast food that is emerging at city halls around the country. Cities have begun banning ingredients, regulating menu information and now dictating whether restaurants are healthy enough to open in their communities. Advocates say the measures are crucial in the fight against obesity, diabetes and other diseases and health conditions. Foes say the rules go too far, violating important freedoms.

"It's very much the example of a nanny state," says Alan Hoffenblum, a Republican lobbyist in Los Angeles.

The restaurant industry says the measures place too much blame at its door.

"We have a fundamental problem with government stepping in and treating restaurants as if they are engaged in activity that is at the root of the obesity epidemic," says Jot Condie, president of the California Restaurant Association. He blames the epidemic on a web of factors, including sedentary lifestyles and lack of nutrition education.

While most local legislation applies to chain restaurants, typically defined as restaurants with more than 10 or 15 branches in the area or state, the ordinance in Los Angeles specifically targets fast food. It defines fast food as having characteristics including "a limited menu" and "food served in disposable wrapping or containers."

In New York City, a law kicked in earlier this year requiring fast-food restaurants to post calorie counts on the main menu right above the counter. San Francisco plans to implement a similar regulation later this year. In both cities, the restaurant industry is suing to try to block the calorie-disclosure rules; in New York, appeals-court judges allowed the city to proceed with the program while they consider the case.

The calorie-posting rules come on the heels of a ban on coronary-clogging artificial transfats, or fats with added hydrogen, in New York City restaurants. Many chains have already removed transfats from their kitchens. Now, copycat legislation is popping up around the country. A ban in Boston goes into effect in September; in Baltimore, a ban takes effect next year. California legislators have sent a bill to Gov. Arnold Schwarzenegger that would remove transfats from restaurants and bakeries statewide.

Government officials say they must attack all causes of obesity. In New York, city officials have said the new information on menus will save people from obesity and diabetes. The ordinance pending in Los Angeles appears particularly tough, because it would halt the opening of any fast-food restaurant in a large part of the city. But it might not be the last such measure. The Los Angeles planning department says it has had calls from several cities asking for copies of the pending ordinance. Already, "the influence is there," says Faisal Roble, the city planner who drafted the ordinance.

Many area residents say they support the ban -- even those who patronize the restaurants regularly. "It's a good idea," particularly for children, says Rafael Escobar, 69 years old, as he bites into a McDonald's sausage breakfast burrito. He thinks the move might encourage other types of food businesses to come into the neighborhood.

"There's not that many alternatives," says Hector Rodriguez, a bus driver toting a bag from the Del Taco chain of Mexican fast-food restaurants. He says he frequently stops along the strip of fast-food restaurants lining Figueroa Boulevard to pick up a snack or lunch. "If there were other choices, like a salad place or a supermarket, it would be better," he says.

But Brian Mason, a student stopping off at McDonald's, says a ban on further fast-food restaurants will do little to address underlying health problems. A better solution, Mr. Mason says, is nutrition education. And several patrons, including families with children, say they will keep coming, their young children in tow, no matter what other choices a fast-food ban might bring.

Nationally, the restaurant industry is taking different approaches to the situation. One is basic: introducing healthier menu items and voluntarily removing transfats to meet customers' demands and in the hope of heading off legislation.

But where it views local legislation as going too far, the industry hasn't hesitated to sue. In New York and San Francisco, it is fighting the new calorie-posting rules partly on the grounds that they are violations of free speech, because they force businesses to articulate government messages. New York has already retooled its requirements once, because a judge last year agreed with restaurateurs that the proposed rule conflicted with federal regulations.

In Los Angeles, the industry is taking a more conciliatory approach. "There is a point where we have to accept a reality, whether we like it or not, and try to make it as workable as possible," says Mr. Condie of the restaurant association. For example, the industry successfully lobbied for a proviso that will allow for exceptions to the ban if fast-food restaurants meet certain conditions, like forgoing the construction of a drive-through window and proving there isn't a rival fast-food restaurant within 750 feet.

Councilman Ed Reyes, part of whose district would be affected by the ban, says he expects many complaints from fast-food owners about their right to do business in the neighborhood. He is prepared with counterarguments. "Health and social issues are the overriding issues, in my mind," he says. "It's not too different to how we regulate liquor stores."

Ms. Perry, the council member leading the legislation, says she sees the measure as just one part of a multipronged effort to fight obesity, including building parks to encourage exercise, encouraging more grocery stores to come into the neighborhood, boosting nutrition education and improving health care. Reining in fast food "is just one factor, but as an elected official, it's my prerogative" to work on all fronts, she says.