Food Trucks Sue Cities Over Distance Ordinances

From Baltimore to Branson, Mo., some food truck vendors say cities' distance ordinances destroy them, and they are fighting back in court.

Food trucks argue that local distance ordinances can choke their fledgling industry, and disenfranchise their abilities to make a living. Fights over food truck distance restrictions are beginning to play out in court.

A Baltimore judge on Aug. 14, ruled that a lawsuit brought against the city by two food truck owners should go to trial in late September. The suit against the Maryland city, filed last year, is in an attempt to change local restrictions.

The complainants, who own the trucks Pizza di Joey and MindGrub Café, are contesting the ordinance that forbids food trucks from operating within 300 feet of a brick-and-mortar store that sells a similar food product, according to an article in the Baltimore Business Journal.

Street Vendor Defenders

Representing the Baltimore mobile restaurateurs is The Institute for Justice (IJ), a Virginia-based nonprofit law firm that has championed and represented the food-truck industry for several years. IJ’s position is that similar laws restricting food trucks are unconstitutional and protect immobile restaurants.

“Customers, not city hall, should decide where and from whom they buy things,” said Robert Frommer, senior attorney at IJ and executive director of its National Street Vending Initiative.

The lawsuit is the latest to fall under the umbrella of IJ’s National Street Vending Initiative, “a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and the court of public opinion,” according to IJ's website.

“Competition is the American way,” Frommer said. “It makes us all work harder to provide a better product to our customers, and state and local government should be encouraging it not shutting it down.”

Punishing Distance Ordinances

Similarly, IJ also represents two food-truck owners from Louisville, Ky., suing the city over its 150-foot proximity restrictions on trucks selling food similar to nearby restaurants without their permission. Mobile vendors face fines and the threat of having trucks shut down or towed if they break this law.

The Louisville lawsuit was filed June 28th in the U.S. District Court for the Western District of Kentucky.

Smart cities have recognized that food trucks play an important role in developing a lively and vibrant local business climate,” according to an IJ description of the case. “But instead of encouraging local entrepreneurs, Louisville officials use the city’s 150-foot ban to punish food trucks for choosing a different business model than their brick-and-mortar competitors.”

Chicago's No-Food Truck Bubble to Remain

An extensive IJ study about Chicago’s 200-foot rule, points out that the concentration of more than 600 restaurants, coffee shops, and convenience stores in the city’s Loop district, each with their own 200-foot buffer, creates a blanket of overlapping bubbles making it illegal to operate a food truck virtually anywhere downtown.

The study stated food truck owners face $1,000-$2,000 fines for parking too close to a brick-and-mortar restaurant in Chicago, dwarfing the fines of other parking safety restrictions, like the $100 fine for parking at a bus stop.

“The city’s scheme therefore perversely incentivizes food trucks to break laws that protect the public’s health-and-safety concerns instead of a law that protects only a competitor’s bottom line,” according to the study.

In Dec. 2016, a Cook County judge upheld the city's 200-foot restriction on food trucks, rejecting arguments that the law gives traditional restaurants competitive advantages, according to an article in the Chicago Sun Times.

The Institute for Justice is appealing the case.

Branson Dialed Back Zoning to Enable Food Trucks

Branson, Mo., also has a distance ordinance restriction for food trucks: they can’t operate less than 100 feet from a restaurant without the owner’s permission. That’s OK with Peter Berzofsky, the co-owner of Spork Express; he’s just happy to sell his food within city limits.

Until this spring, Branson zoning code stated that businesses with a temporary structure couldn’t operate in the city. This included food trucks, ice-cream trucks and lunch carts, according to Berzofsky, who owns Spork Express with his sister Jane Goss.

“That stood for years and no one had ever challenged the law,” Berzofsky said.

Once a large resort became interested in bringing food trucks onsite, the city began to draft an ordinance to change the rule. The process took a year, said Berzofsky, and when it was published for approval by the Branson Board of Aldermen, it was too restrictive, requiring water, sewer and electrical hook ups, and tornado tie downs for each truck, as well as a 1,000-gallon grease interceptor.

Berzofsky, his sister and a friend who owns an ice-cream truck attended multiple meetings in an attempt to have the city back off the restrictions. Berzofsky said he convinced the city engineer and board members to visit Spork Express at a neighboring city’s farmers market.

“After a year of working on the ordinance, they had not seen the truck,” he said.

Once they saw how self-contained food trucks are, they backed off the restrictions.

“Then suddenly they liked us and they liked the food.”

In April, Spork Express received a permit to operate in Branson, something Berzofsky -- and his customers – are happy about.

“The thing that drives me and keeps me focused is that we’ve had this amazing reaction from the public, Berzofsky said. “Besides the food, the enthusiasm the customers have shown for the overall experience is phenomenal.”

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