Food Trucks

Food Trucks Sue Louisville Because Law Allows Nearby Restaurants to Shut Them Down

Truck operator: "I feel like this city is about nepotism, cronyism and favoritism."

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Institute for Justice

Two Louisville, Kentucky, food truck owners have joined with the Institute for Justice to challenge a city ordinance prohibiting food trucks from operating within 150 feet of a brick and mortar restaurant selling similar food. The law has been used to harass food truck entrepreneurs and force them out of high-traffic areas.

The plaintiffs are seeking a permanent injunction on the 150-foot ban and $1 in damages.

Under the law, food truck owners can operate close to a restaurant only if the truck gets written permission from their brick-and-mortar competition. Restaurant owners can revoke permission at any time. As a result of the ordinance, much of the city is marked with "no food trucks" signs, making it difficult for vendors to find a profitable location.

Penalties for noncompliance include fines, loss of license to operate, and 30 days in jail. The ordinance can even be enforced on private property.

Brandon Coan, who worked as a policy adviser for Louisville-Jefferson County Metro Government at the time, crafted the law in 2011 and responded to the suit by claiming that he is willing to take another look at the ordinance. He argues it was necessary at the time: "We created the food truck law in the first place because it needed to be created. There wasn't anything that governed it, and as we see in other things like Airbnb and Uber and Lyft and the sharing economy, new evolutions in business come around, and part of the city's job is to come up with rules so we can have those things in our city."

According to plaintiffs, Troy King owner of Pollo and Robert Martin owner of Red's Comfort Food, this "necessary" law has been far from reasonable. Martin was ticketed in front of customers for violating the 150-foot rule. When he tried to explain that his food was different from what was served in nearby restaurants, he was told that a common food item, bread, was cause for the ticket. Martin no longer risks operating downtown, fearing he could lose his license: "I would like to continue downtown because it affords a living for me and my employees. I got to the point I had to say something. I feel like this city is about nepotism, cronyism and favoritism."

King has run into similar problems, city inspectors have threatened to tow his truck because he was operating too close to a cafeteria-style restaurant serving chicken: "At that time, I knew it was total bullying action." Even though King measured and was 150 feet away from the front door, he was still forced to move because of his proximity to the resturant's basement entrance.

Other food truck owners have reported similar arbitrary law enforcement. Chris Williams, owner of 502 Café, told The Courier Journal that he had been asked to move his barbecue truck because he was too close to a sandwich restaurant.

The Institute for Justice claims that the similar food caveat discriminates against trucks based on what they sell. Further, according to lead attorney on the case Arif Panju:

"The law and the enforcement has gotten worse over the past couple of years. The city has continually enforced this law at the behest of restaurants to kick truck owners out of vending locations where customers know where to find them, and that is simply an attempt to pick winners and losers…Nobody should need their competitor's permission to operate a businesses. Food trucks in Louisville are being forced to do just that. That is economic protectionism; that is unconstitutional."

Their lawsuit accuses Louisville of violating the 14th Amendment by violating the plantiff's rights to due process through arbitrary enforcement, violating equal protection by discriminating based on what trucks sell, and violating the privileges and immunities clause through unreasonable government interference.

The plaintiffs have legal precedent on their side: The U.S. Court of Appeals for the 6th Circuit has previously ruled that using government to protect one interest group at the expense of another is illegitimate in Craigmiles v. Giles. In this 2002 case, independent casket retailers were forcibly shut down or even arrested for not being licensed as funeral directors in Tennessee. The court ruled that this licensing restriction protected the funeral industry from competitors without serving public safety and was thus unconstitutional. Institute for Justice hopes to use this ruling as precedent and now must prove that the 150 foot ban serves no role in promoting public health and safety but is strictly protectionist.

King would like to see the local food truck industry grow, but the current law acts as a deterrent. Protecting incumbent businesses from innovative competition is an unfortunate trend at the state and local level. Such protectionism limits the choices and quality available to consumers. As summarized by King: "I've always said to myself, if a restaurant was worried about a food truck then they probably need to take a look at their menu."

Below, the Institute for Justice explains the case:

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60 responses to “Food Trucks Sue Louisville Because Law Allows Nearby Restaurants to Shut Them Down

  1. “and part of the city’s job is to come up with rules”

    There is the source of the problem.

    (for fairness, how about every other month, food truck owners can shut down brick and mortar places that sell the same type of food?)

    1. Reminds me of when I see people cite statistics on the number of bills Congress passes. They show a drop from the year before and claim it’s a bad thing.

      Makes my teeth itch everytime I see it.

  2. “We created the food truck law in the first place because it needed to be created. There wasn’t anything that governed it, and as we see in other things like Airbnb and Uber and Lyft and the sharing economy, new evolutions in business come around, and part of the city’s job is to come up with rules so we can have those things in our city.”

    That is just a brilliant quote. Orwell himself could have done no better.

    We looked around and saw that there were food trucks. So we had to have a law making it difficult to have food trucks, so that we could have food trucks.

    I’m not so sure why “Look, downtown restaurant owners are big donors to our campaigns, and these trucks are hurting their business.” is such a tongue twister.

    1. Shoulda checked the comment first; no way I was gonna be the first to see that steaming pile.

    2. You’re completely missing his point. The alternative was to ban food trucks entirely from those spaces, but they came up with a less restrictive policy that allowed some trucks to operate near restaurants as long as the food didn’t overlap. So yes, this particular form of the policy could be seen as making it possible to have food trucks.

      1. Oh no, I understand his point entirely and he’s completely wrong. Cronyism, plain and simple, justified by some political hack’s lie that he, and only he, is qualified, authorized, and obligated to watch out for the best interest of us all.

      2. Well, until one realized that there were already food trucks. So, no, not at all. When serving bread is grounds for serving an alike food, then you’ve crossed the line into absurdity.

  3. “When he tried to explain that his food was different from what was served in nearby restaurants, he was told that a common food item, bread, was cause for the ticket. ”

    BREAD!!! Fucking BREAD!!! How many food establishments do NOT sell some sort of bread?!?!?

    The bigger picture is laws are passed with soft-petal words, but the enforcement is with razor blades, jackhammers, tanks, and field artillery! They might as well say, “Well, brick-and-mortar store sells food containing water molecules, and so do you. So you are in violation”.

    1. I would bet money that Reason (or perhaps the truck operator) is hiding information here, as they are wont to do when the information conflicts with their narrative. I seriously doubt that a food truck was selling plain bread. It was probably some sort of specialty bread that the restaurant also served.

  4. The brick and motars owners pay alot of money for those fixed locations off the roads and it seems a little dishonest to allow a competitor to park out front of a business like that. I guess the next step would be surrounding food trucks with other food trucks. I think it’s fair to say you can’t use a public road to operate your business within 150 ft of a similar business. I don’t think the rule should even be dependent on the kind of food you serve.

    1. Morning dump must own a restaurant that’s not very good.

    2. I see your point. A property-rights-respecting solution would be to put up for auction (proceeds going to the city, if the land under the pavement is public land), the rights to park on that pavement. Now, the two food sellers (bricks v/s truck) can have a bidding war… Problem solved!

      As is, though… Quoting from the article… “The ordinance can even be enforced on private property.”

      I can (apparently) flat-out BUY the property next to “Mr. Bricks”, and try to park my food truck there, and the fascists (“Mr. Bricks” and the city), will STILL shut me down!!!!

      1. A property-rights-respecting solution would be to put up for auction (proceeds going to the city, if the land under the pavement is public land), the rights to park on that pavement.

        Sounds good, but devil’s in the details. If you’re auctioning off one parking space, that’s pretty slanted in favor of the food truck — the B&M store likely had no such option when they moved there. Also of course there is the fact that that land was intended for legitimate visitors to park in. The food truck has no right to demand that it be removed from that purpose.

        1. Are we even talking about parking spots? In my area food trucks do not park in the street. They sit on a sidewalk.

          1. But the sidewalk’s still part of the right-of-way. See my analysis.

            1. Fair enough. One would think some sort of fee would alleviate any corcerns not related to competition.

              1. It would have to be a friggin huge fee. Rent and utilities in a city center are exorbitant.

        2. If the food truck operator is feeding the meter for the spot he is taking up, then I see no problem with him parking anywhere. Most of the on street parking in DT Louisville is metered parking.

          1. The rent for street parking via meter is far below its market value. It’s priced just to move the riff-raff along, as a substitute for rationing, not to pay for the upkeep of the street.

            1. And that is the fault of the operator how?

            2. Lol, move the riff-raff along. Not quite how it works in Louisville. I work for a major employer in Louisville and my office building is downtown. I had two parking options when I hired on: the lot/garage pathway whereby new hires were assigned a parking pass for the lot 6 blocks away from the building and then over time get moved to closer lots and eventually to one of two garages, or get a smart card that worked with the meters that paid for all day parking on the street wherever there was an open meter. Regardless of option, we pay a fee from our paychecks for parking. Most downtown employers have these options as well. Even though I work from home, I still pay for my monthly garage pass because it is helpful for parking in the evenings or weekends when we want to eat or shop near my building.

              1. Well yeah, because you’re parking for 8+ hours — of course you’re not using a street space. Those street parking spots are probably for an hour or two max.

          2. Technically the meter money pays for parking enforcement. It is not rent. You can’t feed the meter and proceed to set up furniture in the parking spot and use it as your living space.

            In any case, the fact that you personally don’t see a problem is irrelevant. That space is managed by the city govt on behalf of the people.

    3. The brick and motars owners pay alot of money for those fixed locations off the roads

      I feel for the brick-and-mortar restaurant owners’ predicament that I’m going to spend my money in their businesses out of pure solidarity. No, really!

      Ok, no.

    4. Can’t tell if sarc – if so, well done.

    5. Do you feel the same way about competing brick and mortar restaurants? That is, should a pizza shop owner who has an “in” with the mayor or city council be able to forbid a competing pizza joint from setting up shop next door?

      If your answer is no, then you are being ideologically inconsistent, since the food truck cannot buy or lease private property to operate his truck in competition with the non-mobile pizza place.

      Do get back to me at your earliest convenience regarding which part of the Constitution supports your inconsistency. While you are at it, remind me where it says that customers shouldn’t be able to make up their own mind which food they want to eat.

      1. That is, should a pizza shop owner who has an “in” with the mayor or city council be able to forbid a competing pizza joint from setting up shop next door?

        If the competing pizza place operating rent-free on public property, then yeah, it’s essentially a govt-subsidized competitor. The original shop owner has a legitimate beef.

        1. How is it possibly government subsidized by not paying rent? Do they not pay taxes to the city?

          How is it even marginally logical to assume that a food truck is a direct competitor for a ‘brick and mortar’ establishment in the first place? I don’t know about you, but if I’m willing to eat from a food truck it’s because I’m in a hurry and have zero time to sit down and take 45 minutes to get food and eat it, at minimum, and that’s probably before you consider the line to even get in. Would you say Amazon is the same as a corner book store? I think not.

          It’s regulatory capture on the part of some restaurants because they can, plain and simple. The question you should ask yourself is if they comply with health and safety law. The city has no interest in protecting the business interests of a few establishments over some other establishments that are kind of the same, but also very different.

          1. Food trucks are typically much cheaper than B&M restaurants serving comparable food (b/c they don’t have the expenses that B&M do). In my experience they are often more time consuming than a B&M take-out place due to limited cooking space and not having items pre-made. And of course, food trucks can have lines just as much as any restaurant.

            (Some readers may be surprised to know that I basically lived on food truck fare for part of my life)

            It’s regulatory capture on the part of some restaurants because they can, plain and simple.

            I think you mean rent seeking, not reg capture (that’s when the regulators are controlled by the biz they’re supposed to regulate). There probably is some of that, but just because the restaurants are using unfair tactics does not mean they’re not being wronged.

      2. That is, should a pizza shop owner who has an “in” with the mayor or city council be able to forbid a competing pizza joint from setting up shop next door?

        Well, were they issued a Certificate of Need?

    6. The issue isn’t exactly that, but rather that the real estate owner typically has to pay for the upkeep of the street itself that the food truck parks & operates on. Roadage is typically paid for via taxes that approximate user fees: local streets according to frontage via real estate taxes, through routes via fuel taxes. Both the brick & mortar & food truck operators use the street to get to work, but then the food trucker sits there to operate, paying no real estate tax as the brick & mortar s/he’s parked in front of does.

      1. Public right of way is an ancient concept that lets us have both private property (from which we can exclude others) and a way to travel (& to convey goods, data, electrcity, etc.). Plots of land typically tesselate a civilized area, but with a strip at the boundaries to allow publc passage, from which nobody’s supposed to be allowed to be excluded. The right of passage is supposed to help the property owner, neighbors, & total strangers passing thru, albeit to different degrees depending on circumstances. Establishing a right of way is to me the legitimate purpose of eminent domain.

        Trouble comes when someone wants to set up shop on that very right of way, using it as though it were one of those plots. Technically the food truck may be parked on a parcel owned by whoever’s business is out front, but by law that owner has no control over the street. What confuses the issue is on-street vehicle parking, an extension of the right-of-way concept to allow those using the right of way to keep their vehicle on it when that’s their destination. A parked truck serving passers-by vitiates that concept. It is convenient for passers-by on the sidewalk. Sometimes, as for a lunch truck serving employees of the fronting business, it’s a benefit to that establishment. But here’s a truck competing with the restaurateur who pays for the frontage the truck’s parked on. So this use of the right-of-way is an extreme case: a benefit to the public generally but a detriment to the property owner.

        1. It seems that this assumes that the food truck is parked in a parking space belonging to a particular establishment, but if they’re parking somewhere where they are already paying some type of fee to the city a la a parking meter I don’t see the problem. There are a lot of unknowns, and while you make good points none of them obviously or particularly apply without knowing more than the story gives us. Personally, giving an establishment the ‘right’ to kick a truck out of a public area is ludicrous when that establishment does not directly control that area.

          I’m not so sure about the idea that a brick and mortar store necessarily is the one paying for ‘the roads’ in the first place, either. Both the food truck and the physical location store pay taxes, and while the physical location also pays property taxes the food truck is paying for things that the physical location doesn’t pay for too.

          There’s also the fact that establishments are allowed to have people towed who are not a patron of theirs assuming that a parking space ‘belongs’ to them in the first place. So if they can’t have the truck towed, then what is the argument here? That a different business is using an unaffiliated space that they have no control over to conduct private transactions that may, or may not, compete?

          Last point, would it be a problem if someone tried to sell, say, flowers in one of those spots? If no, it seems that it’s a business discrimination.

          1. Not to mention that the food truck owner is paying gas tax each time he or she fuels up their truck and they probably have to pay the same City of Louisville income tax that the B&M store owner pays. (I’m so glad that I work from home on the Indiana side of the river so I don’t have to pay that stupid city income tax anymore!) Also, many of the restaurants lease their locations, so they generally are not directly paying property tax.

            1. Those are exactly the type of incedential costs I’m talking about. Now, obviously I would admit that the costs associated with operating the food truck are certainly less but there are other equally obvious trade-off’s in the other direction. (Also, a great point regarding the lease but it’s not terribly important to the argument since someone is paying that tax.)

              It’s essentially the difference between fast food and a sit down establishment. In one scenario the customer is paying for speedy service and a short wait, and in the other they are paying for ambiance and an experience that will take longer. This is business 101, and I’m not sure how all these idiots miss that fact. It’s extremely basic stuff when putting together a business plan.

              But just assuming that since both serve food they must be direct competition is idiotic. If anything, these food trucks are going to poach customers that would have waited in line for 20 minutes to an hour to be seated at a downtown eatery. That is only good for the consumer, and frankly I doubt it even poaches that much business from the sit-down places.

    7. I guess the next step would be surrounding food trucks with other food trucks.

      And that’s exactly what happens. At least around here.

    8. Restaurants do better when they are near other restaurants. Because people go to that area to eat, and it’s free advertising for their next visit.

  5. “…and as we see in other things like Airbnb and Uber and Lyft and the sharing economy, new evolutions in business come around, and part of the city’s job is to come up with rules so we can have those things in our city.”

    Government: standing athwart evolution yelling STOP.

    1. It’s Louisville. The restaurant owners write their yearly check to the DNC and the city looks after them. What’s wrong with that?

    2. Businesses like that couldn’t possibly work without government telling them how to work.

  6. “Truck operator: “I feel like this city is about nepotism, cronyism and favoritism.””

    LOL, it’s Louisville. It’s right up there with New Orleans and Chicago.

    1. “I feel like this city is about nepotism, cronyism and favoritism.”

      Isn’t it everywhere? I remember when the Columbus, OH city council passed a measure to award 15% of all city business to woman/minority owned companies- one councilman had convenietly transferred control of his company to his wife three months before it passed…

  7. As someone born and raised in Louisville, this is not really surprising. It has always been a solidly left City. However Mayor Abramson was sane and made some good decisions and he was mayor for nearly my entire life. Fischer has not been so successful. The city has been in steady decline as the rest of the country is rising. His answer to everything is to spend more on it. Despite that he will likely get re-elected to another term and we can expect more of this particular form of silliness.

    1. What makes this worse is that Louisville is really a foodie town. There is a huge community of local businesses and the people of the city are really supportive of local brands and businesses. Its really fertile ground for food trucks.

  8. part of the city’s job is to come up with rules so we can have those things in our city.

    A clearer example of the statist mindset is hard to come by. The idea of simply letting new things happen is nowhere to be found. That which is not mandatory is forbidden.

    1. I see I was way late, and the first two comments already said the same thing. Damn it was such a great quote! Hats off to whoever got the bureaucrat to open his yap.

    2. His point was that they could have just banned food trucks altogether, but instead they made rules to allow them to operate in the city without conflicting with the B&M restaurants.

      1. That wasn’t his point, but if it were it would be a stupid point and you’re stupid for pushing as his point.

        1. Then what do you think his point was? Oh you don’t know? I thought so. So stfu.

      2. I know- Imgine if Reason could restrict the rights of some leftist asshole from posting on their site because we’re all right-wingers… we don’t really need that conflict.

  9. >>>”I feel like this city is about nepotism, cronyism and favoritism.”

    The Don King school of Diction. Effective messaging.

  10. “We created the food truck law in the first place because it needed to be created. There wasn’t anything that governed it, and as we see in other things like Airbnb and Uber and Lyft and the sharing economy, new evolutions in business come around, and part of the city’s job is to come up with rules so we can have those things in our city.”

    You have to be a politico to mouth that bit of happy horseshit with a straight face.

  11. The parking spaces taken up by the food trucks are there for vehicles transporting people to and from the nearby businesses, not for operating a business out of. In effect, the food trucks are cashing in on an unintentional government subsidy by operating out of space that is essentially free.

    I do disagree with the ban being enforced against food trucks on private property.

    violating equal protection by discriminating based on what trucks sell,

    Strange thing to argue — food types are a protected class? Anyway, I’m sure the city would be happy to issue a blanket ban on all food trucks in the 150 ft area to remedy this “discrimination”.

    1. Since most downtown parking in Louisville is metered, in pay lots, or privately operated parking garages; the parking spaces are for anyone that can feed the meter or pay for the spot. It makes no difference if my business is with the store I parked in front or, or a store six blocks away.

      1. In practice anybody who feeds the meter gets the spot, but that’s not the purpose of the parking spot. The fact that there is a meter there does not mean the city can’t restrict who is allowed to use it.

  12. Usually I support IJ, but here they’re really sticking their necks out and potentially causing things to get worse for their clients here. No court is going to deny the city’s authority to ban food trucks entirely from city streets, which the city would probably be perfectly fine doing if that’s the only alternative.

    1. I’m afraid you’re right.

      What’d I’d be OK with is instead of a 150′-to-door rule (applied even vs.private property), an ordinance applying this only to the frontage on the street in front of the establishment. That’s what the property owner’s real estate tax is paying for, theoretically. In some cases that might be more than 150′ from the door, usually less, but it’s the principle that counts, not the amount. Still sucks for the restaurateur who gets a competing food truck across the st., but, hey, it could’ve been a competing brick-&-mortar rest. across the st., & we all agree that should be legal, right?

    2. “Usually I support IJ”

      I find this highly difficult to believe based on your comments in this thread.

  13. Again and again with the “city streets” dodge. Did you read the article? “The ordinance can even be enforced on private property.”

    This is straight up cronyism. B&M needs to provide better food / service / atmosphere and complete in the market.

    1. Compete. Curse you, extraneous “l”.

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