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Institute targets city rules

Rochester Business Journal
February 28, 2014

An activist libertarian law firm that has sued cities including Atlanta and El Paso, Texas, and won battles to overturn what it sees as overly restrictive food truck rules is now targeting Rochester.

The Institute for Justice’s interest in the city’s food-truck regulations stems partly from its work with a local food truck vendors group but also is part of a national campaign. It comes as Rochester officials could weigh an expansion of downtown food truck sales.

Regulations posted on the city’s website allow licensed food trucks approved by the Rochester Police Department’s License Investigation Unit to park in any legal spot but limit food truck vending in the city center to three locations during specified hours and entirely disallow it in

Charlotte’s Harbortown district.

The regulations were established under a pilot program set to expire in March. A City Council vote is needed to continue or alter the program.

A report filed last December by former City Clerk Daniel Karin recommended that the council consider expanding food trucks’ access to downtown, ban their operation in public rights of ways in residentially zoned areas and retain Harbortown restrictions.

Authorized food trucks in commercial districts should be allowed to operate as they now are, in designated areas of the city center while adjacent restaurants are open, the report recommends.

Six or even 10 additional downtown sites would not be enough, maintained Christina Walsh, the institute’s director of activism and coalitions, in a Feb. 20 communique emailed to City Council members. Food trucks should be not only allowed but encouraged to operate as freely as possible throughout the city.

“The pilot program the city of Rochester commenced June 1, 2013, is overly and unnecessarily restrictive and should be revised so as to allow food trucks to roam freely on public and private property subject to legitimate health and safety regulations,” she wrote.

The institute, which has food truck lawsuits pending in Chicago and Hialeah, Fla., has no plans to sue Rochester over its food truck law but would not rule that out, Walsh said in a phone interview this week.

An institute decision on whether to litigate Rochester’s food truck rules would depend on the rules’ final form, she said.

In Rochester and elsewhere, the institute would prefer working with city officials, food truck vendors and restaurant owners to craft legislation rather than get involved in a court fight. And as Rochester officials are considering some expansion of the food truck program, she said, “they’re heading in the right direction. It’s just not fast enough.”

Based in Arlington, Va., the Institute for Justice has 35 staff attorneys, referred to on its website as “our merry band of libertarian litigators.” Over its 23 years, the organization has fought 168 court battles. Five have gone to the U.S. Supreme Court, and four were wins for the institute.

Causes it has backed include school vouchers, cutting restrictions on campaign contributions and reining in government attempts to restrict property owners’ rights.

As of this week, her Feb. 20 email had been acknowledged by only one council member, who thanked her for her interest, Walsh said. No council members replied to a communication on the same topic that she sent last year. She is encouraged that several members are working with food truck operators, however, she added.

“I recognize that the Institute for Justice … supports a laissez-faire approach to regulating this enterprise,” City Council president Loretta Scott said in an email. “We are attempting to establish a more structured and balanced approach. Regulations regarding the use of public spaces or activities on private spaces that may impact the public are intended to provide fair and balanced consideration of sometimes competing interests. However, we certainly look forward to the incorporation of the unique and varied food truck offerings into our city’s dining landscape.”

A task force headed by City Clerk Hazel Washington continues to study the city’s food truck policies, said Christine Christopher, director of communications for Mayor Lovely Warren’s administration.

In the pilot program, city officials worked with vendors, taking note of their concerns. High among them was that the program allots too few spaces for the estimated 40 food trucks operating locally, Karin’s report states.

Joe Cario, the owner and operator of the Roc City Sammich LLC food truck, is losing patience with the process.

“We pay taxes, create jobs, fulfill a need, are constantly inspected by proper health and fire authorities and most importantly help create a vibrant, safe and economically robust community; so why the extra scrutiny and restrictions?” Cario asked in an email.

“We need a blanket permit for the whole city with certain restrictions to protect the public and ourselves. The current process, if it can be classified as such, wastes valuable time of our public servants that may be more properly utilized.”

The Institute for Justice’s focus on Rochester’s food truck law is part of its national street vending initiative, an effort the organization describes as aimed at cutting regulations restricting street vendors in pursuit of economic justice.

“A vibrant food truck scene … benefits everyone,” Walsh wrote in the Feb. 20 letter. “Food trucks put people to work, create opportunities for self-sufficiency and enrich the communities in which they operate.”

The Institute for Justice has been challenging Chicago’s food truck rules in Cook County Circuit Court since November 2012. By prohibiting food trucks from operating within 200 feet of fixed food-service establishments, the Chicago law violates the Constitution, the institute’s lawyers maintain.

A similar institute-backed action has been underway in Hialeah, Fla., since 2011. Hialeah also passed an ordinance barring food trucks from operating near restaurants. An institute court challenge of a similar ban in El Paso resulted in the Texas city withdrawing a law that kept food trucks 300 feet away from restaurants.

In the Feb. 20 email, Walsh cites 5th and 6th U.S. Circuit Court of Appeals decisions that struck down protectionist rules meant to favor a discrete group’s economic interests.

Lacking a ban like those imposed in Chicago or Hialeah, it is not clear whether Institute for Justice lawyers would see room for a legal case here.

No such restriction has been discussed in Rochester, and opposition to food truck competition by restaurateurs has not surfaced so far.

In the 2013 report, Karin noted, “there were few if any complaints received from brick-and-mortar restaurants about the pilot program.”

2/28/14 (c) 2014 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email service@rbj.net.


What You're Saying 

Lee Drake at 12:20:47 PM on 3/4/2014
If the city legislature won't listen to reason, logic and facts, then a lawsuit is the way to go. This city needs to spend less time discouraging new businesses downtown and more time promoting them. Good for the food trucks, and good for entrepreneurs in general.

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