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.