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Food

In food truck fights, libertarian law firm takes a stand

By Tim Carman,September 06, 2011

Senior Attorney Bert Gall is the head of the Institute for Justice's… (Marvin Joseph/WASHINGTON…)

Bert Gall admits that one of his “good friends,” Thomas MacDonald, owns a food truck in Washington, which wouldn’t mean squat if it weren’t for Gall’s current line of work: suing the living daylights out of cities that dare to limit the free enterprise of street vendors.

“Tom really educated me about a lot of the current struggles,” says Gall, a senior attorney at the Institute for Justice in Arlington. “That was a real eye-opener. I was already interested in the regulation of street vending just by doing my research, but he helped make that real by talking about ... what the restaurants were pushing for in terms of regulations and just the hostile treatment that they wanted to give the food trucks.”

MacDonald is the co-owner of DC Slices, the pizzeria on wheels, and he has become one of Gall’s inside sources on the unique business climate in which mobile vendors operate: namely, D.C. regulations that tell vendors exactly how large their rolling kitchens can be and the conditions under which they can sell food (as in: only when customers flag them, like when hailing an ice cream truck).

And those are just the current regulations, which D.C. officials have been laboring to update for two years now. As Gall would learn, the restaurant community and its allies — the business improvement districts and the Restaurant Association Metropolitan Washington, among them — have put forth ideas to further neutralize what they see as food trucks’ unfair advantages, including lower tax burdens and the ability to park wherever the vendors please, even in front of their brick-and-mortar competition. Which helps explain why there are proposals floating around city offices to keep food trucks a certain distance from eateries or require them to secure a public space permit, just like restaurants do for outdoor patios.

So how has Gall repaid his friend for this insider information? By fighting on behalf of Washington food-truck owners? Nope. By focusing his attention on other cities, where street vending faces threats even more dire than in the District. The Institute for Justice, a self-described “libertarian public-interest law firm,” launched its new National Street Vending Initiative early this year in Texas and has since expanded it to Atlanta (where city officials had decided to reserve all public property for a single vending company) and Chicago (where aldermen have proposed rules so severe, they could cut off vending in the entire downtown area). The institute even released a report, “Streets of Dreams,” which reviews vending regulations in the country’s 50 largest cities, including Washington.

“We’re constantly looking all over the country, including every single city that’s included in [the report] as a potential litigation target,” says Gall. “Unfortunately, it’s a very target-rich environment.”

The institute’s legal battles in other parts of the country, however, could provide fringe benefits to MacDonald and to the thousands of equally small vendors who are routinely buffeted about by forces bigger than themselves. The firm’s work has already helped operators in one target city. Vendors in El Paso benefited from the institute’s very first punch in this street fight: a federal lawsuit to overturn the city’s 2009 law that prohibited trucks from, among other things, operating within 1,000 feet of an established restaurant, grocery or other food store. The ordinance, in effect, turned El Paso into a no-vending zone.

The institute’s Texas chapter, led by executive director Matt Miller, filed suit in January, and by April, El Paso caved. The City Council overturned the ordinance without putting up a fight.

“They called us up and said, ‘It looks like you’ve got some good arguments here. What’s it going to take to get rid of the lawsuit?’” Miller recalled. “And we said, ‘Well, repeal the ordinance.’ They said, ‘Okay.’ ”

Almost as important as the victory was the testimony of Michael Hill, the director of El Paso’s Department of Public Health, who spoke before the council on the day it repealed the law: “That [ordinance] was put in 2009 to address concerns of the fixed food establishment vendors who didn’t think it would good for a mobile [vendor] to park right outside their business, but there’s not a health reason or a Texas food rule that I can find that justifies that.”

Hill’s statement has turned out to be a handy weapon for Gall and his vending initiative team. Entrenched business interests, the institute’s lawyers say, have a habit of claiming that new competitors present a public health or safety issue, which then justifies adopting laws to limit the new operators or to shut them down. Gall and his colleagues view that as protectionism disguised as a public service.