Food Truck Lawsuit To Remain Active Until October Council Hearing

Food Truck Lawsuit To Remain Active Until October Council Hearing

Food Truck Lawsuit To Remain Active Until October Council Hearing Featured

By / Local News / Tuesday, 04 September 2018 23:24

Managing Editor

CAROLINA BEACH -  Three food truck owners that operate in Wilmington, NC, announced Tuesday August 21st, they had filed a lawsuit against the Town of Carolina Beach challenging an ordinance approved earlier this year that only permitted established brick and mortar restaurants to operate trucks within Town limits.

On August 28th, the Carolina Beach Town Council discussed the issue during a closed session meeting. Following that closed session, the Council voted to remove the requirement that food truck operators must own a brick and mortar business at a location within Town limits for at least a year and voted to hold a public hearing in October to take public input on the entire food truck ordinance.

Following that decision,  Justin Pearson, Managing Attorney of the Institute for Justice, Florida Office,  which is representing the food truck owners said the Council did the right thing and they will maintain the lawsuit while they wait for Council to hold a hearing in October regarding the ordinance.

The plaintiffs in the case filed on August 21st, in New Hanover County Court are truck owners Michelle Rock, owner of Momma Rock’s Dessert Truck & T’Geaux Boys; Aaron and Monica Cannon,  of A & M’s Red Food Truck; and Harley Bruce, owner of Poor Piggy’s BBQ & Catering.

Pearson explained August 21st during a press conference at the New Hanover County Courthouse the Institute for Justice handles cases across the nation and, "We don't do it for money and we don't charge our clients any money. Instead, we file constitutional challenges around the nation representing individuals who's constitutional rights have been violated."

Pearson said, "The Institute for Justice has had tremendous success over the years. We've been lead council in five United States Supreme Court cases and we won four of them. In fact we have our sixth U.S. Supreme Court argument coming up this fall. One reason why we have been successful is because I.J. made the decision early on to focus on four key areas in constitutional law and become renowned experts in those areas. Those areas are economic liberty, property rights, educational choice and free speech."

He explained, "Today we are here to talk about economic liberty and particularly we are here to talk about the economic liberty rights of food truck owners. 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. Unfortunately that's exactly what Carolina Beach has done. Carolina Beach has turned the bridge to it's island into a drawbridge that it has pulled up on competition. That's not just wrong, it is unconstitutional. In fact it violates several different provisions in the North Carolina Constitution which is why we filed our lawsuit."

Attorney Johanna Talcott  representing the truck owners explained, "This morning we filed a lawsuit in the New Hanover County Court on behalf of these food truck entrepreneurs against the Town of Carolina Beach. The Town of Carolina Beach is unconstitutionally prohibiting them from operating their trucks in the Town simply because they don't already own restaurants there. Governments may not regulate some businesses out of town simply to protect others from competition."

She explained, "The North Carolina Constitution specifically prohibits this sort of economic protectionism. When the Town began drafting it's food truck ordinance it sought input from local restaurants and their biggest concern was competition, especially from outsider food trucks coming in to the Town from areas like Wilmington and other neighboring Towns. Again, the government is not permitted to pick economic winners and losers. The North Carolina Constitution protects their constitutional right to earn an honest living and compete for customers with their delicious food."

She explained, "They want to operate in Carolina Beach. Customers and property owners want them there. The only thing stopping them is the Town of Carolina Beach and it's unconstitutional prohibition on out of town food trucks."

According to the Institute for Justice in an online release on their website at, "Michelle Rock has owned and operated her two food trucks in the Wilmington area since 2014; they were among the first on the local scene. Momma Rock’s Dessert Truck focuses on specialized event catering while T’Geaux Boys—a nod to Michelle’s Louisiana roots—operates as a more traditional food truck."

Rock explained during the press conference, "We don't want to compete with anybody, we just want to be able to do the same thing that restaurants are doing. Serve the customers, serve our neighbors, serve the islander's and let it be pleasurable for everybody. It is Pleasure Island by the way. To be cut off and not be able to do that service for the people who want us is disoncerning for us and we just want everybody to have the same rights. We want everybody to be able to come see us as well as a restaurant if they want to and we want to be able to do same thing that everybody else has been allowed to do without the restrictions that are not fair for food truck owners."

The Town's ordinance, Sec. 14-21. - Food trucks, states, "Allowing food truck businesses to operate in Carolina Beach promotes diversification of the town's economy and employment opportunities. Food trucks support the incubxation and growth of entrepreneurial/start-up businesses, (2) North Carolina General Statute 160A-174 grants towns the power to define, prohibit, regulate, acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the town through the creation of ordinances."

A "Food truck" is defined as, "A readily movable trailer or motorized wheeled vehicle, currently registered with the N.C. Division of Motor Vehicles, designed and equipped to serve food."

The ordinance states, "(1) All food truck operators shall obtain an annual permit from the town manager or their designee, unless otherwise exempted in this chapter. Permits shall be valid for a calendar year. This permit shall be posted in a visible location on the food truck. (2) Food truck operators shall have the signed approval of the property owner for each location at which the food truck operates. This approval must be made available with the permit application. Any additional sites must be submitted to the town for review/approval prior to being implemented. (3) Food truck vendors shall provide documentation of approval from the health department of the county in which the food truck's associated commissary restaurant is located. (4) Each food truck operator will be subject to an annual regulatory fee that will be assessed to cover the costs associated with regulation of food truck businesses. The amount regulatory fee will be reviewed and adjusted as necessary on an annual basis in the town's rates and fees schedule. A permit will not be issued until this regulatory fee has been paid. (5) The town permit and county health permit must be displayed during the food truck's hours of operation."

The ordinance states:
Food trucks shall be allowed in all nonresidential districts with the following restrictions:
(1) Prior to obtaining approval, the food truck operator shall maintain a eating and drinking establishment for at least one year in the town. The eating and drinking establishment shall be in a building and open at all times when the food truck operates. However, if approved by health department the food truck's hours of operation may extend beyond the hours of the eating and drinking establishment.
(2) 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.
(3) 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.
(4) Food trucks shall be located no less than five feet from any fire hydrant, sidewalks, utility boxes, handicap ramps and building entrances. No fire lanes, vehicular access ways, or pedestrian walkways may be obstructed or encroached upon by the food truck.
(5) Food Truck operators are responsible for the property disposal of waste and trash associated with the operation. A trash receptacle shall be provided for customers. Town trash receptacles shall not be used for this purpose. Operators shall remove all waste and trash prior to leaving each location or as needed to maintain the health and safety of the public.
(6) All associated equipment, including trash receptacles and signage, must be within three feet of the food truck.
(7) Temporary connections to potable water are prohibited. All plumbing and electrical connections shall be in accordance with the State Building Code.
(8) No amplified microphones or bullhorns shall be permitted as part of the food truck operation. The noise level from the food truck motor and generator must comply with the town's noise ordinance.
(9) Food trucks shall not be permitted on publicly owned or leased property unless they are part of a town approved special event.
(10) Grease must be contained and disposed of in an approved grease receptacle located at the associated commissary.
(11) Grey water must be contained and disposed of in the sanitary sewer at the associated commissary.
(12) Food trucks must have the following fire extinguisher on board during hours of operation: minimum Class 2A, 10B, and C rated extinguisher. If food preparation involves deep frying, a Class K fire extinguisher must also be on the truck.
All National Fire Protection Association (NFPA) standards shall be met to include fire extinguishers and fire suppression hood systems shall be maintained.
(13) A food truck vendor shall not operate the food truck as a drive-in window.
(14) Lighting shall be such that minimizes the glare on roadways and surrounding properties.
(15) No signage shall be allowed other than signs permanently attached to the motor vehicle and one temporary sign may be permitted in accordance with the temporary sign standards in chapter 40, zoning.
Suspension and revocation of permit. (1) The permit issued for the food truck business may be revoked if the vendor violates any of the provisions contained in this article. (2) The Town Manager may revoke a permit if he or she determines that the food truck vendor's operations are causing parking, traffic congestion, or litter problems either on or off the property where the use is located or that such use is otherwise creating a danger to the public health or safety. (3) The Town Manager reserves the right to temporarily suspend food truck permits during times of special events in the downtown area.
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.

On Wednesday August 29th, Michelle Rock commented on Facebook, "FYI, we have to be invited, we can't just show up. That is for ALL of New Hanover County. We have to submit our schedules to our Health Inspector. We can NOT park in the street unless a part of a permitted event. We can NOT park with in 100ft of an existing food source unless part of a permitted event. We get invited, booked, reserved, etc. So until invited, booked or reserved, there is not a permit applied for. As far as the meeting goes, we were working at an event that had been booked months in advance and could not attend last night. Remember not to ASSume things, just ask. We are here to serve tbe public and as an Islander, the public is my neighbor."

Carolina Beach Planning and Zoning Commission Chairman Keith Bloemendaal, commented, "There were multiple public hearings when crafting this ordinance. FYI, I have been pushing for food trucks harder than anyone in this town, am also Chair of our Planning and Zoning, this leaves a bad taste in my mouth and feel like we should just go back to not allowing them period other than special events on private property. Maybe follow the ASSume advice yourself ;-) As an Islander, I would have addressed the Town before bringing a public lawsuit to my own island, but hey, that's just me. How many times have you set up in KB? (curious)"
Michelle Rock responded to Bloemendaal commenting, "My trucks were born on the Island and I went rounds for several years with being told to talk to the next person then the next. Also being threatened to be shut down or removed if I did an event in private property where I was invited. So I went the rounds, I did events with permits, paid fees, donated money, supported locals. Then all of a sudden the new brick and mortar rule" and, "KB invites us every time there is an event, we do the ones we have the availability in our schedule to do as well as in CB and Fort Fisher. As I stated, the town was addressed by many people and local business owners."

Bloemendaal commented stating, "So, it isn't any different in KB than what we had prior to B&M rule, if we revert back to that way you would support it?"

Michelle Rock commented, "What needs to be done, needs to be fair and in consistent black and white. Too many you can and cant's from different officials. I have been dealing with it for over 5 years, not just recently and have been given too many variations of the rules as well as the shut down threats. I didn't Assume I knew the rules, I asked, I sought out,I tried to abide by what officials told me, explained to me and wanted to do the right thing. My fault was that I did assume that those officials knew what they were talking about. Geez, food trucks in New Hanover County stay booked for weeks/months out now. I know, I book for many of them as well as book for companies. We aren't driving around looking for a corner to set up on. Again, we have county rules for what, where, when and how long we can operate. We just want to be able to serve the people and events that want to book us."

Bloemendaal explained, "Again, is your thought that if we go back to how it was (the same as KB is now) that will work? As someone who has been fighting for food trucks to be here for over 5yrs as a member our P&Z Commission, I am well aware of the battles, how the public feels, and how our local B&M's feel. I can say with a fair amount of confidence, our local taxpayers, business owners, and voters won't be open arms for opening up food trucks to be here without some strict ordinances, I say this because, again, I have been fighting for it. I guess we will see how it all plays out now that a lawsuit is involved, I just don't think people are going to take to kindly to being forced into something and may feel better about saying ok, back to how it was..... Which is a step backwards to me."

Michelle Rock commented, "No one likes taking a step backwards but taking fair steps forward is a win for all."


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