May 30, 2012
Members of the Itinerant Merchant Task Force
Re: Itinerant merchant regulations
Dear Members of the Itinerant Merchant Task Force:
The Institute for Justice is a public interest, civil liberties law firm that advocates in the courts of law and public opinion to vindicate the right to earn an honest living. As part of our efforts, the Institute recently launched its National Street Vending Initiative, with legal challenges to unconstitutional vending laws in El Paso, Atlanta, and Hialeah, Florida. IJ also published Streets of Dreams: How Cities Can Create Economic Opportunity by Knocking Down Protectionist Barriers to Street Vending, a nationwide report on the benefits that street vendors provide and the barriers that too often stand in their way.
Food trucks put people to work, provide a way out of poverty, create opportunities for self-sufficiency, and enrich the communities in which they operate. They can, as the Los Angeles Times recently reported, provide entry-level opportunities, allowing entrepreneurs to test ideas and accumulate capital needed to climb the economic ladder and realize their next opportunity, a brick-and-mortar restaurant. Food trucks also serve as “eyes on the street.” The benefits of food trucks and vending are countless and benefit the entrepreneur, their family and employees, and the community.
Still, the food truck revolution that has spread across the country has left many cities, including Lexington, puzzled about how to regulate these new innovative businesses. Some concerns revolve around how to license trucks, their effect on congestion, the trash that the trucks generate, and ensuring the safety of the food that the trucks serve. These are appropriate issues for the government to consider, and have been addressed by cities across the nation using narrow, evenhanded rules.
But many brick-and-mortar restaurants want to use the legislative process to stifle food trucks and protect themselves from competition. Some cities have passed so-called “proximity restrictions”—laws that prohibit trucks from operating within a certain distance of restaurants, supermarkets, and even convenience stores. This is an unconstitutional use of government power. Passed in response to the suppression of the rights of Southern freedmen and their white supporters in the wake of the Civil War, the Fourteenth Amendment today protects the right of Lexington’s mobile food vending entrepreneurs to operate.
Attorney and task force member David Barberie expressed concern about the proposed 200-foot proximity restriction around any brick-and-mortar restaurant, noting that El Paso’s 1,000-foot proximity restriction got the city into legal trouble. Indeed it did, and in response to our lawsuit, El Paso repealed its law.
Any proximity restriction, be it 50 feet or 500 feet, is unconstitutional. Several members of the task force noted anything below 200 feet would not be sufficiently sizeable for the brick-and-mortar restaurants. Proximity is not a factor for government officials to consider, nor is it the government’s responsibility to protect established businesses from competition. Indeed, the U.S. Court of Appeals for the Sixth Circuit, which includes Kentucky, said as much in response to a lawsuit by the Institute for Justice challenging a government-imposed monopoly on the sale of caskets. In ruling that the government cannot impose protectionist regulations that restrict individuals’ right to earn an honest living, the Sixth Circuit flatly ruled “that protecting a discrete interest group from economic competition is not a legitimate government purpose.” Any proximity restriction that Lexington enacted would similarly be unconstitutional.
Besides the blatantly unconstitutional nature of proximity restrictions, the arguments made for them are absurd. Restaurants open up next door to other restaurants every day, with no uproar. Restaurants will not close because a food truck has rolled into their community. In fact, food trucks draw people outside and into the economy, opening up potential customers’ eyes to new opportunities, be it street food or restaurants and shops. Restaurants and food trucks offer different experiences that have different advantages and disadvantages. It is ludicrous to write an unconstitutional law and risk litigation and bad publicity based on a restaurant’s fear that they will go out of business because a family going out for a nice dinner might be deterred by the hot dog stand across the street.
Lexington should reject protectionist efforts and instead enact clear, simple, and modern laws that focus exclusively on protecting the public’s health and safety. Arbitrary and anti-competitive laws like proximity restrictions and ones that severely limit when trucks may operate restrict healthy economic activity and hit those on the first rung of the economic ladder hardest—those with neither the time nor the resources to fight back politically.
Specifically, the Institute for Justice proposes:
• Instead of creating a pilot program that limits vending on public property to a small downtown space, all public property should be opened up to street food vendors, with appropriate limitations that protect the public health and safety concerns of congestion, trash, and food safety.
• The proposal to limit truck operations to between 10pm and 4am should be rejected. By confining their operation to serving one single type of consumer and prohibiting them from expanding their service to lunchtime and dinnertime crowds, limiting hours arbitrarily denies food trucks the opportunity to succeed. Across the country, brick-and-mortar restaurants are free to set their own hours; food trucks should have the same freedom.
• Section 15-12(c)(2) in the proposed ordinance—which states that vending is prohibited in a location that causes “people to congregate at or near the place where vending items are being sold…”—is vague and, coupled with overzealous enforcement, could make all vending on public property in Lexington illegal. The Institute recommends that the ordinance should instead require that food trucks keep the sidewalks in the area around their trucks passable.
• Any proximity restriction based on the location of existing brick-and-mortar restaurants or other food truck competitors is unconstitutional and should be rejected. Regulations pertaining to where vendors are allowed to operate should be limited to addressing concerns about congested intersections, narrow streets, etc.—not concerns about competition raised by brick-and-mortar restaurants.
It is no coincidence that cities with laws that are not based on protectionist intent, like Los Angeles, enjoy thriving food truck scenes, while cities that put protectionism before entrepreneurship do not. Laws that embrace entrepreneurship see it thrive. Especially in these still-difficult economic times, Lexington should be fostering entrepreneurship and honest enterprise—not regulating it out of business.
The Institute for Justice hopes you will thoughtfully consider the above information and adopt legislation that is limited to protecting the public’s health and safety. Please do not hesitate to contact me at [REMOVED] if you have any questions or I can provide further information. Thank you.
Director of Activism and Coalitions
CC: Lexington-Fayette Urban County Council
1 Available at http://www.ij.org/streetsofdreams.
2 “Food trucks as a vehicle to sit-down restaurant success,” Los Angeles Times, Oct. 6, 2011.
3 See Jane Jacobs, “The Death and Life of Great American Cities,” New York: Vintage, 1992.
4 See Institute for Justice press release, “Victory for El Paso Mobile Food Vendors: City Enacts New Ordinance Allowing Vendors to Compete Openly in the Marketplace in Response to Federal Constitutional Challenge,” April 26, 2011, available at http://www.ij.org/el-paso-vending-release-4-26-11.
5 Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).