IL Sup Ct: Chicago can favor restaurants over food trucks; Decision written by Justice Anne Burke, wife of Chicago Ald. Ed Burke

By Dan Churney | May 23, 2019

Illinois Supreme Court Justice Anne M. Burke   Vimeo livestream screenshot

The Illinois Supreme Court says the city of Chicago has the constitutional power to regulate where food trucks can park and how long they can stay in certain spots, as well as to track truck whereabouts with GPS devices.

The decision went against LMP Services and its owner, Laura Pekarik, who started running Cupcakes for Courage food trucks in 2011 in Chicago. Pekarik challenged a 2012 ordinance that oversees food trucks. 

The ruling was authored by Justice Anne Burke, with concurrence from Chief Justice Lloyd Karmeier and Justices Robert Thomas, Thomas Kilbride, Rita Garman, Mary Jane Theis, and P. Scott Neville Jr. 

Justice Burke is married to Chicago Alderman Ed Burke, who served for decades as the chairman of the City Council's powerful Finance Committee. Ald. Burke had voted in support of the ordinance in 2012. 

In a statement emailed to The Cook County Record following the decision, attorney Robert Frommer, of the Institute for Justice, a public interest law foundation which represented Pekarik in the matter, said the Institute still reviewing the decision and may consider options for appeal."

The Institute for Justice did not request Justice Burke recuse herself from the case, despite her husband's connections to the ordinance and support of the city's food truck regulations.

In a press release, Pekarik described the high court decision as "heartbreaking" for entrepreneurs.

The ordinance requires food trucks to stay at least 200 feet from street-level customer entrances to brick-and-mortar restaurants and to change locations every two hours, as well as to carry a GPS device, which must be activated when truck operators are selling food. The city said the GPS device enables city officials to find trucks for inspections, resolve complaints and address other matters.

Pekarik and another truck operation, which has since gone out of business, sued the city in Cook County Circuit Court, arguing the 200-foot rule breached the equal protection and due process clauses of the Illinois Constitution by favoring restaurants. Pekarik contended the GPS requirement violated the state constitution’s protection against warrantless searches.

Cook County Circuit Judge Anna H. Demacopoulos dismissed the case, finding the city was within its rights. 

Pekarik then appealed to the Illinois First District Appellate Court, where that panel affirmed the circuit court decision. Pekarik then traveled to the state supreme court, pushing her argument the city stepped over the constitutional line.

Justice Burke discounted Pekarik’s contentions, finding the city had legitimate interests in promoting restaurants and keeping tabs on truck locations.

“Brick-and-mortar restaurants bring stability to the neighborhoods in which they are located. The restaurants pay property taxes and have a vested interest in seeing that their neighborhoods continue to grow. Moreover, in certain areas of the City, such as Greektown, restaurants are a vibrant part of the community and bring a long-term sense of cohesiveness and identity to the area,” Burke said.

Burke continued: “While food trucks bring a life and energy to the City that is all their own, they simply do not have the same long-term, stabilizing effect on City neighborhoods as brick-and-mortar restaurants do. Indeed, the business model of  food trucks and a good deal of their appeal are built on mobility, not stability: The trucks may be in the City one day and in Evanston or Aurora the next.”

In addition, Burke said the court believes Pekarik’s right to run a business doesn’t mean she can conduct business anywhere in Chicago.

As far as the GPS requirement, Burke concluded food trucks usually post their locations on social media to attract customers, so “any expectation of privacy a food truck might have in their location is greatly diminished, if it exists at all.”  

Burke further said it’s a “basic necessity” for the city to know the location of a business for health and safety inspections. 

The Illinois Policy Institute, Restore the Fourth, Inc., the Pacific Legal Foundation, and the Illinois Food Truck Owners Association, as well as the National Food Truck Association and CATO Institute filed friend-of-the-court briefs in support of LMP.

In a press release following the ruling, attorney Frommer said: 

“There is nothing reasonable about the government prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers. Not only does Chicago’s rule shut a low-cost, common path into the restaurant industry for the city’s entrepreneurs, it forces everyday Chicagoans to continue to suffer from fewer choices and higher prices."

Pekarik said, in the same press release, “I hoped the Illinois Supreme Court would reject this kind of government picks the winners and losers approach, where success turns not on how good your product is, but on who you know at City Hall.”

The Illinois Restaurant Association filed a friend-of-the-court brief on behalf of the city.

Chicago Corporate Counsel Suzanne Loose argued for the city before the state high court.

Jonathan Bilyk contributed to this report.

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Organizations in this Story

City of Chicago Illinois First District Appellate Court Illinois Policy Institute Illinois Restaurant Association Illinois Supreme Court Institute for Justice Pacific Legal Foundation

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