After court ruling, Chicago food trucks must fight on against protectionist city rules

In her Dec. 5 ruling, a Cook County Circuit Court judge said Chicago’s oppressive food truck regulations serve legitimate city interests. But evidence shows the only interests the rules protect are those of politically connected restaurant owners and politicians.

Food truck owners like Laura Pekarik have had to navigate a thorny path to operate in Chicago.

Pekarik, who owns Cupcakes for Courage, started selling cupcakes as a way to raise money for the medical bills of her sister, who was diagnosed with non-Hodgkin lymphoma in 2010. Pekarik received enough positive feedback on her cupcakes then that she started a food truck operation in 2011, while still giving a portion of her profits to cancer research.

But her venture collided with Chicago politicians intent on insulating the restaurant industry from competition. The latest evidence of the city’s protectionist approach to food laws came Dec. 5, when Cook County Circuit Court Judge Anna Helen Demacopoulos upheld two of Chicago’s most burdensome regulations against food trucks, maintaining the city’s hostile climate to the industry.

A lawsuit Pekarik filed in 2012 argued that the city’s 2012 rules “legitimizing” the food truck industry in Chicago and imposing strict limitations on the trucks’ operations were unconstitutional. Pekarik, represented by the Institute for Justice, an Arlington, Va.-based litigation group, challenged multiple of the city’s rules on due process and search, seizure and privacy grounds.

The challenged rules state food trucks:

• Can’t operate within 200 feet of a brick-and-mortar business that sells food (including anything from McDonald’s to CVS)

• Must plug in a GPS tracker to let the government know where they are

Demacopoulos upheld both restrictions, claiming the rules balanced both interests at play, which – before reading parts of her ruling – she teed up as “the traditional brick-and-mortar restaurant against the young, rising pop star, the food truck” and protecting public health.

200-foot rule did not violate due process rights under rational basis test, according to court

Demacopoulos cited the rational basis test for upholding the 200-foot rule. She said the rule serves a “dual purpose” of balancing the interests of restaurants and food trucks. She also said the 200-foot rule aligns with the city’s goal of reducing sidewalk congestion. Anyone who has ever visited food trucks at lunch time knows the scene is far from chaotic, despite high customer demand

In her ruling, the judge said that photos “retrieved from Twitter, clearly show that food trucks result in significant sidewalk congestion.”

Another way, though, to interpret these tweets is that there is significant demand for the products food trucks offer.

GPS requirement did not violate prohibition against unreasonable search and seizure, court held

Demacopoulos held that the GPS requirement did not constitute a warrantless search, but that even if it had, it would not qualify as an unreasonable search or seizure. The judge cited the 1987 U.S. Supreme Court case New York v. Burger in upholding the GPS regulation, and said mandating a monitoring device does not conflict with the requirements established in Burger. In that case, the Supreme Court said a constitutionally permissible search must meet three criteria: There must be substantial government interest that informs the regulatory scheme pursuant to which an inspection is made; the warrantless inspections must be necessary to further that regulatory scheme; and the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.

Not only did Demacopoulos find the GPS tracking met these standards, but she went on to say that any privacy concerns about government tracking food trucks “borders on the absurd.”

“(The idea) that a business serving food to the public should be permitted to conceal its location from governmental scrutiny, including the public health department, simply because it is on wheels is incomprehensible,” she said.

But the government responsible for the surveillance has interests beyond public health – and that’s protecting the restaurant industry. Aldermen have even said as much in the past.

Tom Tunney, the 44th Ward Alderman and owner of the Ann Sather chain of restaurants, has made no secret that the main driver behind the city’s oppressive rules is to protect established businesses.

“One of the major issues is spacing from brick-and-mortar restaurants,” Tunney told the Chicago Sun-Times in 2011. “We’ve got work to do. We need to hear from all sides. We need to make sure we protect … restaurants and foster a trend that, I think, is gonna be here for a while.”

And Chicago aldermen received a total of $180,926 from restaurants in 2015, according to Illinois State Board of Elections data compiled by the Chicago watchdogs at Project Six. This figure doesn’t include some restaurant owners or lobbyists, who likely donate under other names or entities, and is in addition to the fact that Emanuel has publicly vowed to “crack down” on the city’s food trucks.

Gabe Wiesen, owner of Beavers Donuts and head of the Illinois Food Truck Association, thinks it’s clear the rules are designed to protect a specific industry – the politically connected restaurants.

“I’m really disappointed,” Wiesen said after hearing the judge’s ruling. “I thought it was pretty obvious that this was an unfair regulation that was pitting one industry against another and really just didn’t serve a purpose other than to protect the perceived threat of food trucks to Chicago restaurants.”

And that’s exactly the end the regulations accomplish. Wiesen noted that many food trucks in Chicago have had to stop operating over the years, due to the constraints imposed by the regulations.

This includes, in part, Pekarik herself. Despite being licensed, she has recently decided against taking her truck out in the Loop because it’s too much hassle for too little revenue. An Institute for Justice analysis found that food trucks are legally able to park at just 3 percent of curbs in the Loop, the city’s busiest weekday lunch location.

Pekarik was hoping the ruling Dec. 5 would change that, and she would be able to head out on the streets again in pursuit of a profit.

But for food trucks, the fight to undo harmful city restrictions carries on. Unfortunately, these rules will continue to sideline Pekarik and potentially many more food truck operators in the city will continue to sideline Pekarik and potentially many more food truck operators in the city.

“I was really hoping to be able to bring out my truck on to the streets of Chicago and sell to my customers and where they want to see us go,” she said. “But nothing will change.”

The Institute for Justice has already promised to appeal the ruling, and has 30 days to do so. An appeal would likely go to the First District Appellate Court.

“The essential point remains that the purpose of government is to keep us healthy and safe and prevent real harm, not to be protecting businesses from legitimate competition,” said Robert Frommer, an attorney with the Institute for Justice. “That’s precisely what Chicago has been doing for 25 years.”

And it’s that prevailing attitude and policymaking that makes Chicago’s business climate hostile to entrepreneurs. Unless and until an appeal is successful, Chicago food truck owners will still be shackled with protectionist policies from city government, designed to benefit special interests and weed out competition. Other major cities – with much larger food truck industries – lack the burdensome regulations Chicago imposes on its entrepreneurs.

Following the ruling, Frommer called Chicago’s food truck industry the “most anemic” of those in major cities, saying the city could learn lessons from other large metropolitan areas.

“The food truck industry will survive – it will thrive,” Frommer said. “Just not here in Chicago.”

“Competition, whether you succeed or lose, should turn on how good your food is, how good your product is – not who you know at City Hall.”