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November 20, 2012

Food trucks sue City for rights

The Institute for Justice Clinic on Entrepreneurship (IJ Clinic) at the Law School filed suit against the City of Chicago last Wednesday morning on behalf of three food truck owners with the hope of resolving a dispute regarding the appropriate role of government in the regulation of mobile food vendors.

The suit is on behalf of Greg Burke and Kristin Casper (A.B. ’08) of Schnitzel King and Laura Pekarik of Cupcakes for Courage. The IJ Clinic is suing the City on grounds that legislation regarding food trucks unfairly favors restaurants and is unconstitutional, as it does not grant equal legal protection to businesses guaranteed by the Fourteenth Amendment. The website of the Institute of Justice (IJ), a national organization based in Arlington, VA, said the law is protecting the “few politically connected” brick-and-mortar restaurateurs and, as a result, depriving mobile food vendors of economic opportunity.

U of C law students from IJ Clinic, which is a joint project of IJ, are advising the clients under the supervision of lead counsel Robert Frommer of IJ.

Casper, Burke, and Pekarik chose to work with the Clinic after networking with them at a mobile food symposium hosted by the IJ Clinic called “My Streets, My Eats” at the Law School last April and learning that IJ’s Texas chapter was instrumental in abolishing a proximity rule of 1,000 feet for food trucks in El Paso.

Chicago’s regulations contain a proximity rule that institutes a $2,000 fine for parking within 200 feet of a restaurant and stipulates that trucks install a GPS tracking system themselves to enforce that rule. Entrepreneurs have decried the regulations, claiming that they inhibit economic growth by stifling creativity and free market competition.

“Businesses have [the] right to choose what they want to do. They need freedom, and without that freedom, the government’s really running your business,” Casper said.

As of now, the City has only released a short statement acknowledging the litigation but has yet to make a concrete decision on how to proceed. The City is required to respond within 30 days, Casper said.

The City has recently taken steps toward loosening regulations. For instance, three weeks ago, the City Council approved an ordinance that designated 21 stands where food trucks are legally allowed to park for two hours at a time. The ordinance provided an exception to the proximity rule, as some stands are located within 200 feet of a restaurant.

Casper said she does not see these measures as adequate. “It’s a medicine for a symptom; it’s not addressing the problem.”

She also said she believes that greater mobility has the potential to benefit restaurants by attracting people who don’t normally frequent such areas and creating a broader sense of community between people who would otherwise not interact.

A reason for such prohibitive legislation is the fact that cities tend to be risk-averse, according to Brooke Fallon, Office and Community Relations Manager for the IJ Clinic. Because food trucks are a relatively new and unconventional business model, she said, cities don’t know how to adequately regulate them in a manner that addresses health and safety concerns while avoiding excessive protectionism.

“I think a part of it is not having a good model and set of best practices and that’s been a big challenge for us,” she said.

The restaurant industry has also voiced its concerns actively throughout the discussion over food truck regulation. High property taxes, high rent, and the economic recession are challenges the industry faces daily.

“The businesses just don’t feel that this is the right thing to do for them when they are trying to make a dime,” Maureen Martino, executive director of the East Lakeview Chamber, said to the Chicago Tribune about the exemptions to the proximity rule.

Fallon said that older, more established restaurants have more “political swing”, as they are more connected with city officials and thus have the upper hand in advocating their positions.

“Restaurants have a natural spokesperson in the city council,” she said.

She noted that Alderman Tom Tunney of the 44th Ward is the former chairman of the Illinois Restaurant Association.  Casper also said the National Restaurant Association donates heavily to Tunney.

“They listen to them, versus listening to the little guy,” she said.

IJ has also released two national reports accompanying the lawsuit. The first offers recommendations to metropolitan cities on the ways in which policy can be used to cultivate small mobile food businesses. The second refutes some commonly held notions about the food truck industry and its relation to traditional restaurants.

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