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Judge declares difference between food trucks, restaurants, upholds Chicago food truck rules

By Jonathan Bilyk | Dec 5, 2016

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A Cook County judge has kicked to the curb a lawsuit from food truck owners challenging the constitutional authority of the city of Chicago to impose regulations dictating where they can park and how long they can stay in one spot, and requiring them to allow the city to monitor by GPS where they are when they are open for business.

On Monday, Dec. 5, Circuit Judge Helen Demacopoulos ruled in favor of Chicago City Hall, saying the city had a “rational basis” to impose the regulations under an ordinance enacted in 2012.

Attorney Rob Frommer, of the Arlington, Va.-based Institute of Justice, which represented the food truck owners, said they plan to appeal the decision, and are willing to take the matter to the Illinois Supreme Court, if necessary.

“These regulations don’t benefit anyone,” said Frommer. “Not the trucks, not the city, not the people who just want to find a different place for lunch.

“Nothing in today’s ruling will change that.”

The plaintiff food truck owners had also been represented by attorneys with the firm of Eimer Stahl LLP, of Chicago.

The decision comes as the latest step in a legal battle dating back four years, to when the city first imposed the regulations.

Food truck owners Greg Burke and Kristin Casper, who operated the food truck business known as “Schnitzel King,” initially filed the lawsuit. They were later joined by LMP Services, the entity that operates the food truck “Cupcakes for Courage,” which is headed by entrepreneur Laura Pekarik.

The lawsuit alleged the city had overstepped its constitutional authority in passing the regulations, which, among other things, require food truck owners to stay 200 feet from the entrance of brick-and-mortar restaurants; to move to another location every two hours; and to install a GPS tracking device, which must be turned on when the food truck operators are selling their wares.

The plaintiffs contended the ordinance was intended simply as a means of protecting restaurants from competition from food trucks.

The city, however, responded by asking the judge to find its regulations passed constitutional muster, as the ordinance “balances the needs of the community, which includes the interests of brick-and-mortar restaurants.”

Demacopoulos sided with the city, saying the ordinance falls within the city’s legitimate interests in fostering the growth and economic health of its restaurants which, the city had argued, “provide important economic, cultural, and neighborhood benefits” to Chicago, and in regulating pedestrian sidewalk traffic.

In arguing the city had overreached, the food truck operators had cited the case of Chicago Title & Trust Co. v. Village of Lombard, in which the Illinois Supreme Court had struck down a Lombard village ordinance prohibiting new gas stations within 650 feet of another gas station. The Supreme Court in that case found the regulations to be “arbitrary and unreasonable,” as such a rule “tends to promote monopoly.”

In the food trucks case, however, the judge said that precedent could not be applied, as the competition between food trucks and restaurants is not the same as competition between gas stations.

She noted food truck operators enjoy far lower costs to enter a market and begin selling than do traditional restaurateurs. And she said the ordinance does not promote monopoly as it leaves “entire areas of Chicago, including the Loop” open to food trucks.

To support this assertion, Demacopoulos pointed to Pekarik’s success at finding “appropriate places to vend in the Loop,” such that “her business is thriving.” The decision noted she has “opened a brick-and-mortar bakery, purchased a second food truck and now has 15 employees.”

“Were the city to bar new brick-and-mortar restaurants from opening within a certain distance of existing brick-and-mortar restaurants or food trucks from other food trucks, Chicago Title would be on point,” the judge wrote.

Further, the judge tossed aside the food trucks’ arguments against the GPS tracking, calling such arguments “absurd.” She said the city does not continuously monitor their locations, but rather requires the GPS history to be stored to aid city investigations into complaints about the food trucks.

The judge backed city assertions the food truck operators had “no reasonable expectation of privacy when operating” their trucks.

She noted traditional brick-and-mortar restaurants are required to submit to “unannounced health inspections” from the city as a condition of being allowed to do business in Chicago.

Similarly, the judge said, there is “no colorable reason food trucks should not be subject to the same,” and, for that reason, the city needs to know where they are serving food to customers.

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Eimer Stahl LLPIllinois Supreme CourtCity of Chicago