The Lobster Underground

Food vendors vs. the state

Lobster is upscale. Hot dog buns are not. Crack the former, toast and butter the latter, maybe mix in a bit of celery and mayonnaise, and you have the ultimate in shabby-chic cuisine: the lobster roll. The dish is often bought at battered roadside shacks that dot New England's coastal regions, a downscale setting that serves as a reminder of lobster's unpretentious early history as fish bait. The roll's place on select seasonal McDonald's menus throughout New England—along with the fact that eating one doesn't require an adult to wear a bib—has further cemented its place as the only lobster dish ready for mass consumption.

Whether as a treat for the common man or an excuse to slum it for the well-to-do, the lobster roll was never terribly hip, edgy, or controversial. Until last year, when a Brooklyn artist and chef reinvented the lobster roll as delicious underground performance art.

Using the moniker Dr. Claw, the thirtysomething chef began boiling batches of lobsters in his home kitchen and using the meat in rolls he sold—without the requisite licenses and permit—in Greenpoint, a Brooklyn neighborhood populated by Polish Americans and an ever-increasing numbers of hipsters. In order to skirt the law, Claw—whose real name is widely published but whom I chose not to identify here so that he could speak freely to me—devised a system that would be the envy of even the most enterprising drug dealers on The Wire. Claw's customers first had to friend him on Facebook. Then, if they checked out, Claw would provide the potential customer with a phone number, exchange texts when the roll was ready, and hand off the goods in a plain brown bag.

Claw says he initially sold the food out of his apartment. Only after he had to move his sales to the streets did he go from mere chef-entrepreneur to the self-styled "lobstah pushah." "I can't take credit for any of it, I've got to be honest," Claw said in an early October interview conducted over coffee and donuts at the Peter Pan Bakery in Greenpoint. "I was forced to do it on the street because the fire department came and my landlord didn't want me to do it at my place. So I was all bummed out. I mean, half of [the draw of buying lobster rolls] was coming into my nautical-themed apartment. It was literally underground—downstairs—and it was cool.

"And then this kid came up to me and just did this thing—he walked this way and I just walked that way," Claw says, motioning, "and everything was just born out of that moment. I was like, 'That kid has clearly bought drugs on the street before. He knows the system.' I don't even know how the money just ended up in my hand. He's got the roll. And we didn't say a word."

[Article continues after the video, "Lobsters Invade D.C.!"]

Thus was born Claw's lobstah pushah persona. He perfected his act with an Ali G-style costume that mixed lobster- and Boston-sports-themed attire and a thick, gold-spray-painted chain holding up a large lobster claw (also spray-painted gold). Dr. Claw was now equal parts "culinary" and "art." And if the lobster rolls were good enough to hook customers, it was Claw's performance that kept them coming back.

"You do the cash/crustacean handoff in literally three seconds, and then you're on your way," says John Hendrickson, a longtime Greenpoint resident and frequent Dr. Claw customer. "And the rolls were sublime—hot grilled bun, at least half a pound of warm fresh lobster, copious melted butter, and nothing else."

Sadly, Claw's success was also enough to place him on the radar of the New York City Department of Health and Mental Hygiene, which regulates food safety in the city. The agency was hot on Claw's delicious, buttery tail for some months before it finally forced him to shut down his operation in August.

Claw says he can't envision himself becoming a "legitimate" full-time operation. He balks at the idea of opening up his own mobile food-vending business—more commonly known as a "food truck." But even if Claw wanted to open up a shiny new food truck in New York City, he simply cannot do so. In fact, no one in New York City can, the result of the city's dazzlingly draconian vending regulations.

To be fair to New York City, other jurisdictions boast equally stupid food truck laws. In North Carolina, for example, Asheville vendor Justin Smudde of Bandido's Burritos complains that it's illegal for a city food vendor operating in a public area to "assemble any kind of food" except hot dogs. "So you can grill the hot dog," says Smudde. "Boil the hot dog. Put relish on there. Whatever. Chili. You know—whatever you want. For me, I can't make a burrito on the spot. I can't grill the meat for the burrito, or any of that stuff, or grill up a tortilla." In exchange for its beneficence in allowing him to make burritos on private property, North Carolina requires Smudde to obtain a mere four operating licenses.

Lobsters Migrate from NYC to D.C.

Susan Povich owns Brooklyn's Red Hook Lobster Pound, which supplied Claw with his lobster meat. Povich knows the heartbreak of food truck regulation all too well, having tried and failed to open her own lobster roll truck. "New York has limits on the number of local food [permits] that they issue," Povich says. "There's been a waiting list for, like, 25 years."

Matt Shapiro—an attorney with New York City's Street Vendor Project, a nonprofit organization that defends the rights of city vendors—explains the distinction between vending licenses, which are widely available, and vending permits, which the city refuses to issue to entrepreneurs. "If you want to become a food vendor you need to have a license, which is like an ID card for yourself, which anyone can get," says Shapiro. "You have to take a food handling class. And then you're able to sell food on a permitted food cart or truck.

"You also need to get a permit for your cart or your truck from the Department of Health," says Shapiro. "But they don't give out any more permits. The Department of Health has capped the amount of food-vending permits. And you cannot get one. The waiting list is even closed. But it was 10 or 15 years' wait. It's impossible to get a food vending permit from the city.…If you want to get a permit for your cart or truck, you cannot do it."

Surely there must be some way? "No," confirms Zoe Tobin, associate press secretary with the city health department. "The number of permits is capped under the city's administrative code," Tobin explains. "The city council would have to change the administrative code in order for there to be more permits available." Unless city legislators act, the city's vendor permit ceiling will stay capped at 3,100 renewable two-year permits and 1,000 seasonal permits.

The only wiggle room: Permits are available for fruit and veggie carts. "They're called green carts," says Shapiro. "So if you want to sell fresh fruits and vegetables whole—not cut up or processed in any way—you can get a permit to do that. The problem is, once you get this permit they tell you where you have to sell."

There's another option, but it's both expensive and illegal. "A sort of black market has emerged for people who got permits a long time ago and have had them for years," says Shapiro. "They sell them at an extremely exorbitant high price to people who want to work. That is illegal, of course, because you're not allowed to sell a permit in New York. But unfortunately the framework that the city has created has made this a necessity."

Tobin notes the health department has tried to deal with the problem by making permittees legally responsible for a cart whether or not they operate it. But such a policy is only likely to exacerbate the existing problem by increasing the risks for existing permit holders and, in turn, driving up the black-market price.

Povich—who would rather not plunge into the whole, uncut fruit and vegetable business or buy a permit off someone on the black market—says that even if legit permits magically became available she would not be currently able to sell her products. "I'm not even allowed under New York City law to sell" fish or shellfish from a food truck, says Povich.

While she continues to try to find a way to sell from a food truck in New York City, Povich figured another city might embrace or at least tolerate her idea. She looked south and saw that Washington, D.C.'s comparatively tolerant food truck regulations, which were loosened in 2007, allow vendors to flourish in many parts the city. What once was a wasteland with little more than hot dogs now had room for trucks selling everything from Korean barbecue to Middle Eastern food.

Povich ultimately partnered with a relative—Leland Morris, who has a background in catering—to open up the Red Hook Lobster Pound DC food truck in Washington, D.C. The truck, which began roaming the streets of the nation's capital in August, was an immediate success. "We were totally caught off guard that first day," says Morris, Red Hook Lobster Pound DC's president and co-owner. "I think we ran out of food three times."

If the truck's owner was caught off guard, so too were D.C. regulators, who initially told Red Hook Lobster Pound that D.C. regulations, like New York's, forbade food trucks from selling seafood. Although that setback proved to be temporary, other difficulties emerged. "When we first hit the street, definitely the police were checking us out," says Morris. "Once they realized we were absolutely permitted, licensed, and everything was signed, we've actually had a very great relationship with D.C. police."

Wheels vs. Bricks

D.C.'s mobile food trucks are subject to different regulations than those governing the traditional stationary vendors that dot the National Mall selling hot dogs and half-smokes. One challenge they face is the district's antiquated "ice-cream truck" rule. That regulation mandates that a mobile food truck may only stop and sell food when a line of customers is already in place.

In the bygone era when the regulation was written, the signal to queue up came from the loudspeaker of ice-cream truck operators, who would play their familiar jingle at the first sign of children. Today, with the advent of Twitter, complying with the ice-cream truck rule simply requires a well-timed tweet about the food truck's anticipated location to the truck's mass of followers. (The lobster truck, for example, boasts more than 11,000 followers on Twitter.)

A greater challenge is the mobile vendors' contentious relationship with some D.C. restaurants and stationary food trucks, which closely guard what they see as "their" territory. "We had a gentleman, a manager from a restaurant, come out and ask, 'Why are you parked here?'?" says Morris. "I just said we were trying to pick up some business from the [hockey] game. He took it as a real personal attack on the restaurant. And I said, 'Why don't you go across the street to [a relatively new restaurant there] and ask them why they opened up there?' In my mind it's no different. If there's a vacant retail space, anyone can move into it. Just because there's one restaurant here doesn't mean another one won't open up next door."

Islam Basha, an assistant manager at a D.C.-area Domino's Pizza, can't hide his contempt for the lobster truck parked in a metered space in front of his store in September. "Of course it's hurting, because it's right in front of your store," Basha says. He points to a line of about 30 customers waiting to buy lobster rolls. "Most of those customers were ours."

Angela Jones, a first-time customer who works near the Domino's, laughs when I tell her Basha's claim. Mobile and brick-and-mortar restaurants should be able to coexist peaceably, she tells me. "Why not?" says Jones. "I mean, all the other restaurants in the area do. I don't think it's really any different having a lobster truck in front of your store than having it next door in a retail location. I don't think it makes a difference. Either you want pizza or you want lobster."

Lobster roll customers "don't care about what is the quality of the product," complains Basha. "They just want to eat cheap, you know?" Basha—a man offering two medium two-topping pizzas for less than the cost of one lobster roll—apparently fails to see the irony in his comments.

Such conflicts are common wherever mobile and brick-and-mortar restaurants operate side by side. "A lot of restaurants and businesses view the vendors as a threat because of the competition," says the Street Vendor Project's Shapiro. "They don't want people selling on the streets competing with their stores. You know, our country was founded on the free market and competition. So we really don't buy that argument." 

Scott Hamilton, a D.C. restaurateur who sells lobster rolls (among other menu items) at Liberty Tree, an attractive, brick-and-mortar, white-tablecloth location in the District's H Street Corridor, doesn't buy the argument either. "I probably would catch some flak from other restaurants, but I have no problem with it at all," he says. "I see it as competition, and there's competition everywhere. If you're not better than other people, then you shouldn't be in business anyway."

The District's Department of Consumer and Regulatory Affairs (DCRA) is in the process of recommending new rules that would update the regulations for food trucks. The fight has been playing out in local newspapers and before the DCRA, which has received nearly 2,500 public comments on the matter. "There was a huge surge in favor" of the trucks, says Michael Rupert, communications manager with the DCRA. "It was probably 98 percent in favor."

Those who call for more tightly regulated trucks, on the other hand, are creative with their rule suggestions. While some want the city council to ban or severely limit mobile vendors, others want to establish a sort of noncompete radius around brick-and-mortar restaurants. Still others prefer limiting food trucks to specially designated vending districts, or want food trucks to face the same sales-tax structure as restaurants. One D.C. food truck owner, who asks not to be identified, says his greatest concern is that the city council will either freeze new applications or implement radius restrictions.

Liberty Tree's Hamilton, for his part, calls for fair regulations across the board. "As long as [food trucks]—I don't want to say 'face the same regulations' as restaurants," he says, his voice trailing off. "It's ridiculous what we go through anyway." Hamilton should know. A veteran D.C. restaurant owner—the H Street restaurant is his second venture—Hamilton describes the soul- and wallet-crushing six-month regulatory process he went through to open Liberty Tree as a best-case scenario. Hamilton faced numerous expenses, and the delays alone, based on average sales since he opened, cost him "probably at least $200,000" in lost revenue. That startling figure does not include money he paid architects, lawyers, and others. Nor does it include his monthly rent, business taxes, and other expenses.

What's more, D.C. construction crews working on the street in front of Liberty Tree erected modular concrete barriers that prevented Hamilton from gaining access to his driveway, which he had hoped to turn into a 50-seat patio. When D.C. finally removed the barriers in July—six months after the date Hamilton says the District had estimated—it was too late in the summer for him to open up the patio.

Free Food

Clearly, Washington's restaurants could stand some serious deregulation. Short of that, there are more immediate reforms that could be adopted within the existing regulatory structure. One way to eliminate unconscionable regulatory delays like the one Hamilton faced would be for the D.C. government to implement a presumption of legality for launching a business. Under such a scenario, regulators could permit restaurants that have incorporated and passed a health inspection to open for business in the event of any government delay of more than a few business days. The District government would immediately begin earning sales and income taxes from the restaurant and its employees—rather than having to wait months or more—while restaurant owners and employees could begin working and benefiting themselves and the broader economy. And the city could still close a restaurant it found to be unsafe and could still demand that the restaurant fix any documented problems.

In many ways such a system already governs food trucks in D.C. Instead of cracking down on the successful food trucks, D.C. should look to those businesses' success as a reason to cut the red tape that engulfs entrepreneurs who want to launch brick-and-mortar restaurants.

New York, meanwhile, should mimic the best of what D.C. has done so far. Doing this will require a completely new mind-set at city hall, but such a change is long overdue. "I know there are some cities that encourage vending and that see it as a positive aspect of the city," says the Street Vendor Project's Shapiro. "But I don't think New York takes that stance right now."

In the meantime, what's a shuttered lobstah pushah to do? Dr. Claw is weighing his options. "It was short and sweet," he says of his black-market days. "It was real. I didn't wuss out. I took all the chances and really went for it as an underground operation. So I got a lot of street cred that way. And now everyone's like, 'What are you going to do? Are you going to do a food truck?'?"

But Claw is hesitant to do anything that might be seen as a "watered-down version" of his original vision. He'd like to go back to being Dr. Claw, he says, "which I could do. But they'll probably get me again. And I don't know what the fines would be." 

Baylen Linnekin, an attorney, is the founding director of the new nonprofit membership association Keep Food Legal.