Editorial: Food Trucks & Brick And Mortar Rule

By / Editorials / Wednesday, 29 August 2018 15:17

By WILLARD KILLOUGH III
Managing Editor

Three food truck owners that operate in Wilmington, NC, announced Tuesday August 21st, they were filing suit against the Town of Carolina Beach challenging an ordinance approved earlier this year that only permits brick and mortar restaurants to operate trucks within Town limits. (See report...)

Justin Pearson, Managing Attorney of the Institute for Justice, Florida Office, explained, "The government is not allowed to pick winners and losers in the market place. That choice belongs to customers. It also means that it is unconstitutional for the government to limit food choices to local brick and mortar restaurants."

Pearson is correct. The requirement for ownership of a brick and mortar establishment in order to operate a food truck in Carolina Beach goes against the State Constitution.

After reading the ordinance, if they are successful in their argument concerning the brick and mortar requirement, they would still have to adhere to the rest of the ordinance requirements.

Other than the brick and mortar issue, the ordinance still contains other requirements including this: "Food trucks shall not be permitted on publicly owned or leased property unless they are part of a town approved special event." That means they can only operate on private property unless it's a special event like a "street festival" or the recent BBQ festival at the Carolina Beach Lake approved by the Town Council.

To be clear, the words "publicly owned" covers both town properties and public right of ways (streets). As for parking requirements, under the Town's zoning ordinance for all commercial uses, the ordinance states: "Food trucks shall not occupy parking spaces required to fulfill the minimum requirements of the principal use, unless the hours of operation of the principal use do not coincide with those of the food truck. Parking waiver allowances from chapter 40, zoning, may be applied."

That means if any business has chosen to meet only the minimum requirements of the zoning ordinance for required parking spaces for a particular commercial use (office space, retail, etc), it would present a problem because a food truck would occupy a number of those required parking spaces. If a property had spaces in excess of the zoning requirements, that wouldn't be an issue.

Attorney's didn't mention the requirement during a recent press conference about another regulation in the ordinance that states: "The food truck shall be positioned at least one hundred feet from the customer entrance of an existing restaurant during its hours of operation, unless the food truck vendor provides documentation that the restaurant owner supports a closer proximity."

The reason that is surprising is because the Institute for Justice has been successful in a previous case in another state and won a dispute over distance requirements from other restaurants. For obvious reasons, because it was deemed impractical by the court to meet such distance requirements and it was unlikely that other restaurants would sign off on it.

Food trucks are not permitted to operate on public property or right of ways in neighboring Kure Beach. They can only operate on private properties. They can operate on a street during a special event with approval of the Town Council.

During the Council's August 28th, meeting the Council discussed the item in closed session. Following that closed session, Mayor Joe Benson made a motion stating, "I'd like to make a motion to adopt ordinance 18-1091 to amend Chapter 14-21 of the Town Code to eliminate section B-1, requiring a food truck operation to maintain an eating and drinking establishment prior to the issuance of an annual permit."

Benson made a second motion stating, "I make a motion that Town staff bring back the food truck ordinance for future consideration to include public comment."

The Council voted unanimously on both motions.

This basically answers the plaintiff's case by removing the requirement challenged in the lawsuit.

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