In food truck fights, libertarian law firm takes a stand


Senior Attorney Bert Gall is the head of the Institute for Justice's food truck program, photographed in Arlington, Virginia on August 18, 2011. (Marvin Joseph/WASHINGTON POST)
September 6, 2011

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.

“The argument is so absurd,” Gall says. “It’s like, ‘Some food trucks and some food carts might have health and safety violations; therefore, we need to shut them down.’ Well, some restaurants have health code violations. The solution is not to shut them down. You don’t shut down every restaurant. You enforce the health code.”

The Institute for Justice has attacked legal restrictions on vendors by invoking the 14th Amendment to the U.S. Constitution. Gall argues that such laws are a violation of the amendment’s due process, equal protection and “privileges or immunities” clauses. “Economic protectionism is not a legitimate government interest,” Gall says. “The government can’t regulate in an arbitrary manner designed to serve the interests of private, publicly connected parties.”

Arianne Bennett could be considered one of those private, publicly connected parties. She owns the Amsterdam Falafelshop and serves as vice president of the Adams Morgan Partnership Business Improvement District. An admitted food truck fan, Bennett bristles at the idea of restaurateurs being labeled protectionists.

“It’s the city’s job to make sure that we’re all able to pursue our happiness,” Bennett says. “But it’s also their job to make sure that we don’t do it to the extent where we hurt people around us. We all grew up as Americans knowing that to be American means, ‘I’m free to do whatever I want to do.’ But then you got into ...college and you found out that the second half of that sentence was, ‘I’m free to do whatever I want to do – unless it infringes on someone else’s freedom to do what they want to do.’ ”

American or not, the institute invoked the 14th Amendment in the El Paso case. The institute has used the same constitutional arguments in cases that wander far from the world of street vending, too. The firm has summoned the power of the 14th Amendment to protect African hair braiders (which led the D.C. Council to repeal a law requiring hair braiders to obtain a pricey cosmetology license), Las Vegas limousine drivers and even Benedictine monks who were prohibited from selling wooden caskets in Louisiana because they were not licensed funeral directors.

That last case, strangely enough, could be a flashpoint for Gall and his team. The monks, Gall notes, won their case in federal court, but the Louisiana State Board of Embalmers and Funeral Directors has appealed, which could eventually lead to a Supreme Court showdown. The nation’s highest court might hear the case, Gall believes, because lower courts have issued differing opinions on whether economic protectionism is a legitimate government interest. Should the Supreme Court rule in the monks’ favor, a precedent could be set for all future cases in which cities try to curb competition through legislation.

Officials with the D.C. Department of Consumer and Regulatory Affairs are well aware of the Institute for Justice’s work, both past and present. Helder Gil, the department’s legislative affairs specialist, says there are many reasons why the new vending regulations continue to be stuck in neutral. For starters, he notes, officials have had to slog through more than 2,500 public comments, possibly the most ever for a set of proposed regulations.

The DCRA acknowledges that the new regulations, whenever passed by the council, will be reviewed mercilessly by all sides: vendors, restaurateurs, Business Improvement District officials, the Institute for Justice, whoever, all looking for reasons to cry foul. “It pays to be deliberate in these circumstances,” says Samuel Williams, the DCRA’s administrative officer. “We know there’s plenty of other folks out there who [will review] what we’re going to propose with a fine-toothed comb. Any verbiage that they don’t agree with or want to challenge, it’s got to be defensible from our standpoint.”

Neither Gil nor Williams could talk about what changes can be found in the latest draft of the vending regulations, which is what worries some of the 20-plus members of the D.C. Food Truck Association. The group has been actively engaged with the city to defend its turf and promote its agenda. Earlier this year, for example, Justin Vitarello of Fojol Bros. and Kristi Whitfield of Curbside Cupcakes spoke at a public hearing of the Committee on Finance and Revenue about taxing food trucks.

Despite their engagement, however, some association members still fret about what the proposed regulations may have in store for them and whether any changes will affect their ability to survive. At present, says co-owner MacDonald, DC Slices earns enough to pay the bills. But that money “could disappear at any time based on lots of other variables,” he notes, including unfavorable changes to the rules.

But MacDonald has faith in his friend across the river to help their cause. “What he’s doing is right and just. I don’t think it’s based on any type of anger. He’s a very level-headed guy,” MacDonald says. “He just wants to see that people and businesses . . . that are being stifled by everyone have a voice.”

Gall is blunter about his perspective on Washington vending. “We are extremely interested in the outcome of everything in D.C.,” he says, “and we would strongly advise that they not pass a proximity restriction” on how close food trucks can park to restaurants.

Then he laughs. It’s the kind of laughter that mocks his own bravado — and suggests confidence in his plan of attack.

Tim Carman serves as the full-time writer for the Post's Food section and as the $20 Diner for the Weekend section, a double duty that requires he ingest more calories than a draft horse.
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