only 200 feet to go
Wandering Dago, Inc. v. Destito, No. 16-622 (2d Cir. 2018)
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Justia Opinion Summary
WD filed suit against OGS, alleging that defendants violated its rights under the First Amendment, the Equal Protection Clause, and the New York State Constitution by denying WD's applications to participate as a food truck vendor in the Lunch Program based on its ethnic-slur branding. The Second Circuit reversed the district court's grant of summary judgment for defendant, holding that defendants' action violated WD's equal protection rights and its rights under the New York State Constitution. In this case, it was undisputed that defendants denied WD's applications solely because of its ethnic-slur branding. In Matal v. Tam, 137 S. Ct. 1744 (2017), the Supreme Court clarified that this action amounted to viewpoint discrimination and, if not government speech or otherwise protected, was prohibited by the First Amendment. The court rejected defendants' argument that their actions were unobjectionable because they were either part of OGS's government speech or permissible regulation of a government contractor's speech.
Food Truck Warrior Ponders Next Step in Battle With Chicago
A cupcake-truck owner says city’s parking rules have driven her out of downtown
Food trucks cluster in pockets of downtown Chicago that comply with city rules saying they can’t operate within 200 feet of a bricks-and-mortar restaurant. PHOTO: JAKE HOLLAND FOR THE WALL STREET JOURNAL
CHICAGO—Laura Pekarik isn’t sure she has the stomach to continue her long-running, and so far losing, battle with this city’s tough policies on food trucks.
Seven years ago, food trucks were seen as the next big thing in a city known for culinary innovation. But new city rules in 2012 that forbid the trucks from operating within 200 feet of any bricks-and-mortar food business eliminated the trucks from large swaths of the city.
Ms. Pekarik, 33 years old, says her lime green food truck was pretty much driven out of downtown.
“It became scary to be on the streets,” Ms. Pekarik said. “All of the sudden restaurants were calling the police on food trucks.”
So she sued the city, appealing until her case landed in the hands of the Illinois Supreme Court.
Laura Pekarik, who operates two bricks-and-mortar bakeries and owns two food trucks, says ‘it’s impossible to operate downtown.’ PHOTO: ANTONIO PEREZ/CHICAGO TRIBUNE/TNS/ZUMA PRESS
Last month, the court determined that the city’s rules, which include requiring the trucks to carry a GPS tracker on board so the city knows where the trucks are, didn’t violate the state constitution.
Now, Ms. Pekarik and her attorney, Robert Frommer, are weighing whether to appeal to the U.S. Supreme Court.
The number of food trucks in Chicago has fallen 40% in the past six years, to about 70 food trucks total, according to Mr. Frommer, who also leads the Institute for Justice’s National Street Vending Initiative.
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“They’ve ignored the fact that throughout the nation, food trucks and restaurants coexist peacefully,” Mr. Frommer said. “The city’s speculation of shuttered storefronts and dilapidated restaurants just doesn’t play out in the real world.”
Matt Geller, president of the National Food Truck Association, said Chicago’s food truck rules are the strictest in the country. Other major cities like New Yorkand Los Angeles don’t have the 200-foot rule, Mr. Geller said, meaning trucks there are more easily able to innovate and grow there.
Ms. Pekarik, who operates two bricks-and-mortar bakeries named Courageous Bakery & Cafe in the Chicago suburbs, said the lack of code-compliant parking in populated areas and the stress of a potential ticket—which can be as much as $2,000—have compelled her to keep her truck outside of city limits.
“They’re my heart and soul,” Ms. Pekarik said of her two food trucks, one of which—Cupcakes for Courage—was named in honor of her sister’s battle with cancer. “But it’s impossible to operate downtown.”
She now keeps her two vehicles in the suburbs, using them for catering, corporate events, festivals and graduation parties.
Cupcakes for Courage, one of Ms. Pekarik’s food trucks, is named in honor of her sister’s battle with cancer. PHOTO: LAURA PEKARIK
Ms. Pekarik said she hopes Lori Lightfoot, the new mayor of Chicago, will “take a stand” and modify the 200-foot rule. A spokesperson for Ms. Lightfoot didn’t respond to requests for comment.
Rosa Escareno, commissioner of the Chicago Department of Business Affairs and Consumer Protection, said the regulations “strike the right balance” between the interests of bricks-and-mortar restaurants and food trucks.
Sam Toia, president and chief executive of the Illinois Restaurant Association, agrees.
“We also appreciate the court recognizing that restaurants are anchors of every neighborhood in the city, encouraging long-term stability and economic growth,” Mr. Toia said.
Sam Barron, owner of Fat Shallot, a sandwich company that operates food trucks and bricks-and-mortar locations throughout the city, said many of the restaurants downtown are chains anyway, so the 200-foot rule does little other than support restaurants that can be found anywhere.
Plus, Mr. Barron added, restaurants and food trucks—which now huddle on a few select streets downtown—offer different services and aren’t necessarily competing for the same demographic.
“Somebody’s not going to not eat at a steakhouse because they see our sandwich food truck parked outside,” he said.
Mr. Barron, 35, said people regularly come to him asking for advice on how to launch a food truck in Chicago. His standard answer: “Good luck finding somewhere to put it.”
Write to Jake Holland at jake.holland@wsj.com
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