Last week, Laura Pekarik, owner of the food truck Courageous Cupcakes, watched as her more than six-year legal challenge to Chicago’s protectionist mobile vending rules reached the Illinois Supreme Court. Her son, who is younger than the lawsuit, sat next to her quietly listening to the attorneys and justices discuss whether his mother’s food truck and others will have a future in the Windy City.
Right now, the rules are stacked against Pekarik and other Chicago area food trucks. The U.S. Chamber of Commerce, in a recent analysis of food truck rules in America’s largest cities, concluded that, “The experience of operating a food truck in Chicago is perhaps one of the most difficult in the country.” The Chicago Tribune reports that only about 65 trucks operate in the city. That is just over half the number that operated in 2012. What makes this especially striking is that most major cities have seen a boom in the number of food trucks on their streets. Portland, Oregon, for example, is one quarter the size of Chicago but has more food trucks.
This case presents two major issues to the Illinois Supreme Court: whether the city government may hobble mobile vendors in order to financially benefit brick-and-mortar restaurants and whether it may force food trucks to submit to GPS tracking.
Chicago bans food trucks, whether operating on public or private property, from operating within 200 feet of any establishment that serves food. This includes everything from white table cloth restaurants to convenience stores. The map below from an Institute for Justice report shows how Chicago’s “200-foot rule” makes the city center almost completely inaccessible to trucks.
The city’s attorney, citing years-old testimony, claimed that Pekarik admitted her truck had no trouble operating in Chicago’s Loop. If you watch closely, at the moment this claim is made, Laura’s eyes widen. That’s because the reality is that it has been years since she regularly sent her food truck into the city because her operators simply couldn’t find legal spaces.
The city claims that the proximity ban is an attempt to control sidewalk congestion, yet it could not cite a single study that supports its claims that food truck lines are a threat to public safety. In fact, the city’s attorney was reduced to misconstruing an Institute for Justice on sidewalk congestion to try, unsuccessfully, to make her point. This study, in fact, showed that the presence of a food truck had little to no effect on the time it took for a pedestrian to walk a block.
Several of the justices showed skepticism about the city’s congestion claims. Chief Justice Lloyd Karmeier pointed out that there would perhaps be more congestion in front of a crosswalk or theater rather than a restaurant. Justice Anne Burke followed up saying that there are no rules for other businesses that could cause lines, including theaters and retail outlets.
Of course, Chicago’s 200-foot rule has nothing to do with congestion. City lawmakers made that much clear when they repeatedly stated its purpose is to protect restaurants from competition. Mayor Rahm Emanuel’s own press release stated that the 2012 ordinance “protects traditional restaurants.” Illinois’s high court and a number of other state supreme courts have long recognized that such explicitly anti-competitive laws are unconstitutional.
On top of the unconstitutional rationale at the heart of the law, Chicago requires food truck owners to submit to an unconstitutional search as a condition of operating. Every truck must have a GPS tracking device installed at the cost of the truck owner. The location data is stored by a private third-party company and both a truck’s current location, as well as everywhere it’s been for at least the past six months, is available to the public upon request.
The city knows it’s on shaky ground with this requirement, especially the public accessibility requirement. Just three weeks before the Supreme Court argument, the city created new regulations stating that the GPS coordinates are not available to the public. They didn’t, however, change the law, which still says the exact opposite. The private company that Pekarik contracts with for GPS services indicated that it would abide by the law and provide private individuals with access to Laura’s data if requested. In fact, the company indicated that it had already complied with at least one request for GPS data.
But that request didn’t come from city officials. Even though the city requires GPS tracking to enforce its 200-foot rule, it claimed its food inspectors would also need this data in order to conduct field inspections. But in more than six years, the city has never requested the location of any food truck. Food truck owners then are being forced to submit to an unconstitutional search that is completely unnecessary for any legitimate end.
The justices had a number of questions for the city attorney about the GPS requirement, including whether caterers in the city are subject to a similar rule that they keep the city informed about where they operate. Justice Burke also asked the city’s attorney to confirm that the food truck owners have to pay for their own monitoring.
Whether food trucks will have much of a future in Chicago is now in the hands of the justices. But a ruling for food trucks wouldn’t be a ruling against restaurants; if anything, the presence of food trucks has been shown to increase the foot traffic into nearby restaurants.
IJ Senior Attorney Robert Frommer noted that Chicago lawmakers’ claims about the need to protect restaurants “is contradicted by the real-world evidence of New York City, Los Angeles, and Washington, D.C., all of which have both vibrant restaurant and vending industries without any kind of anti-competitive rules like the 200-foot rule.”
The only thing Chicago is doing for its citizens with its protectionism is limiting their food options and knocking out the first rung of the ladder in the food services industry. If the justices rule for Pekarik and the food trucks, mobile and brick-and-mortar food providers will flourish side-by-side, and Chicagoans will discover new cuisine that could one day become as iconic as the Chicago hot dog or deep dish pizza.
