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Supremes hand down another big defeat for Chicago food trucks

Thursday, May 23, 2019

* Back in 2017, the Illinois Supreme Court ruled against some food truck owners who objected to being prohibited from doing business in Chicago’s Medical Center District. So, this should probably be no surprise

The Illinois Supreme Court ruled Thursday that Chicago’s food truck regulations are constitutional and that the city can protect restaurants from their wheeled competitors.

The court affirmed the ruling of the appellate court and the circuit court before it, which also had decided in favor of the city in a lawsuit that claimed Chicago’s food truck restrictions suppress competition.

The lawsuit, filed in 2012 by food truck owner Laura Pekarik, who runs Cupcakes for Courage, claimed a city rule prohibiting food trucks from parking within 200 feet of any establishment that serves food — a category that includes convenience stores with hot dog rollers — forces food trucks to make concessions to help their bricks-and-mortar competitors succeed. Another part of the law that mandates food trucks carry GPS devices so that the city can track their whereabouts constitutes a “warrantless search” and violates privacy protections, the suit claimed.

Chicago food truck operators say the city’s restrictions have driven entrepreneurs out of business and stunted the local scene even as it has thrived elsewhere in the nation.

* The Institute for Justice filed the lawsuit…

[IJ Senior Attorney Robert Frommer] concluded, “Today’s ruling is a sharp break from decades of Illinois precedent that protects the right to earn an honest living subject only to reasonable government regulation. There is nothing reasonable about the government prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers. The Illinois Supreme Court’s failure to stand up to the powerful on behalf of ordinary folks, like Laura and other food truckers in the state, does a profound disservice to the constitutional rights of everyone in the state.”

* From the opinion

When applying the rational basis test, our inquiry is twofold: we must determine whether there is a legitimate governmental interest behind the legislation and, if so, whether there is a reasonable relationship between that interest and the means the governing body has chosen to pursue it. See People v. Reed, 148 Ill. 2d 1, 11 (1992). The party challenging a legislative enactment as failing rational basis review bears the burden of proving by clear and affirmative evidence that the enactment constitutes arbitrary, capricious, and unreasonable legislative action; that there is no permissible interpretation that justifies its adoption; or that it does not promote the safety and general welfare of the public. […]

Both brick-and-mortar restaurants and food trucks are important businesses that bring significant benefits to the City. However, they do so in very different ways. Brick-and-mortar restaurants bring stability to the neighborhoods in which they are located. The restaurants pay property taxes and have a vested interest in seeing that their neighborhoods continue to grow and thrive so that their own businesses will flourish. Moreover, in certain areas of the City, such as Greektown, restaurants are a vibrant part of the community and bring a long-term sense of cohesiveness and identity to the area. In this way, brick-and-mortar restaurants can help establish certain parts of the City as tourist destinations in and of themselves, thereby increasing revenue for the City and improving stable economic growth.

In contrast, while food trucks bring a life and energy to the City that is all their own, they simply do not have the same long-term, stabilizing effect on City neighborhoods as brick-and-mortar restaurants do. Indeed, the business model of food trucks and a good deal of their appeal are built on mobility, not stability: The trucks may be in the City one day and in Evanston or Aurora the next.

The City has a legitimate governmental interest in encouraging the long-term stability and economic growth of its neighborhoods. The 200-foot rule, which helps promote brick-and-mortar restaurants and, thus, neighborhood stability, is rationally related to this legitimate interest. […]

A case more on point to the present one is Triple A Services, in which this court upheld a Chicago ordinance that prohibited food trucks from conducting business within a certain section of the City identified as the “Medical Center District.” Triple A Services, 131 Ill. 2d at 223. Applying the rational basis test, we held that the City had the power to regulate the use of its streets for private gain and, therefore, had the authority to prohibit food trucks from operating in the medical district. Moreover, we found that the prohibition was rationally related to the City’s legitimate interest in ensuring that emergency vehicles, medical personnel, and medical clients had easy access to the medical facilities; in enhancing the appearance of the district; and in promoting sanitary conditions within the area. Thus, we upheld the ordinance as constitutionally valid. Similarly, in the present case, the City has a legitimate interest in ensuring the long-term viability of its neighborhoods, an interest that food trucks do not further.

In sum, we find that plaintiff has not met its considerable burden of showing that the 200-foot rule is an arbitrary and unreasonable municipal action and that no permissible interpretation justifies its adoption. The 200-foot rule is not unreasonable because it is a part of a regulatory scheme that seeks to balance the interests of food trucks with the City’s need to advance the stability and long-term economic growth of its neighborhoods. Having found that the 200-foot rule is rationally related to a legitimate governmental interest, we need not consider the City’s alternative rationales for upholding the constitutionality of the 200-foot rule.

Your opinion?

- Posted by Rich Miller        

30 Comments
  1. - Almost the weekend - Thursday, May 23, 19 @ 2:38 pm:

    I agree if vehicles paid a property tax like in Missouri then I’m conflicted. But they don’t, so carry on.


  2. - ArchPundit - Thursday, May 23, 19 @ 2:46 pm:

    I don’t know enough to know if 200 feet is a good rule–seems a bit far, but local government gets to regulate zoning which is what this is. You can fight the rule in the legislative process, but don’t ask the court to block legit government actions because you don’t like the decision.


  3. - Ok - Thursday, May 23, 19 @ 2:46 pm:

    The Medical Center decision had a lot stronger ground (city can absolutely decide how its streets get used in relation to private business enterprise using them).

    The 200 foot rule doesn’t seem to be on as strong of a ground (be careful not to unwind that “promotes neighborhood stability” justification, lest you see what else people may argue promotes neighborhood stability).


  4. - Rich Miller - Thursday, May 23, 19 @ 2:47 pm:

    ===gets to regulate zoning which is what this is===

    It’s really not even zoning. It’s control of a city’s streets.


  5. - Perrid - Thursday, May 23, 19 @ 2:51 pm:

    The government can discriminate against businesses if those businesses don’t fill the government’s coffers as much as the competition. I’m typically a big government kind of guy but that type of crony capitalism is a bit far even for me.


  6. - Chicagonk - Thursday, May 23, 19 @ 2:54 pm:

    Even if the rule is dumb, I don’t think it is for the Supreme Court to overturn dumb city rules.


  7. - ugh - Thursday, May 23, 19 @ 2:58 pm:

    For a minute there I felt bad for that guy from the show The Chi who just got his food truck going…then realized he wasn’t an actual person. You know it is a good show when….


  8. - I Like Food Trucks - Thursday, May 23, 19 @ 3:01 pm:

    Interesting that the opinion was authored by Justice Ann Burke. I wonder how much involvement her husband had in creating the regulation.


  9. - BraidwoodBilly - Thursday, May 23, 19 @ 3:02 pm:

    I wish I could act surprised but it the Illinois Supreme Court certainly isnt the first nor the last court to use the rational basis test to allow for cronyism.


  10. - DuPage Saint - Thursday, May 23, 19 @ 3:08 pm:

    I thought I read somewhere that Ed Burk either sponsored or supported the ordinance.


  11. - Henry Francis - Thursday, May 23, 19 @ 3:08 pm:

    They should just start retrofitting the trucks into marijuana dispensaries. They could be rolling dispensaries. It would be in all the papers.


  12. - 47th Ward - Thursday, May 23, 19 @ 3:19 pm:

    The corner outside of my office is in one of the Loop’s 200 feet zone. The Harold’s Chicken truck parks there like it’s stalking me. There is always a line. If you don’t get your order in by 11:30, you’re out of luck.

    Mmmmm, Harold’s.


  13. - Tim - Thursday, May 23, 19 @ 3:25 pm:

    Maybe if they made more political donation to the legislators, aldercritters and judges they’d get a fair shake.7


  14. - Back to the Mountains - Thursday, May 23, 19 @ 3:27 pm:

    1. Even if Burke personally hand-wrote the regulations and personally wrote tickets for violations, it wouldn’t be a conflict for Justice Burke to rule on the constitutionality of the regulation.

    2. It’s rational basis review. To say the food truckers had a fighting chance going into this would be charitable.

    3. Just because it’s bad policy does not mean it’s unconstitutional.


  15. - lakeside - Thursday, May 23, 19 @ 3:34 pm:

    ==Just because it’s bad policy does not mean it’s unconstitutional.==

    This. I think it’s unfair (surely our nation’s 7-11s taquito sales will survive trucks at 100 or 50ft), but that doesn’t mean the court’s action wasn’t correct.


  16. - Ron Burgundy - Thursday, May 23, 19 @ 3:51 pm:

    I wish they would have explained to me how brick and mortar restaurants promote neighborhood stability when most of them eventually fail.


  17. - Stuntman Bob's Brother - Thursday, May 23, 19 @ 4:11 pm:

    I would think the people who patronize food trucks are not the same customers who would sit in a restaurant with wait staff. So, maybe make a 200 foot rule for Subway outlets (or similar), but making Food Trucks stay 200 feet away from a Lettuce Entertain You is too much. Food trucks serve the same purpose as Uber, a cheaper but still acceptable alternative. The losers here are the people who want to catch a quick bite in a compressed lunch break.


  18. - Not a Superstar - Thursday, May 23, 19 @ 4:13 pm:

    == It’s rational basis review. To say the food truckers had a fighting chance going into this would be charitable. ==

    Ding ding. The standard of review decided this case. Only hard-core IJ ideologues can be surprised by this ruling.


  19. - Red Skeptic - Thursday, May 23, 19 @ 4:23 pm:

    Everything passes rational basis; everything fails strict scrutiny.


  20. - I Miss Bentohs - Thursday, May 23, 19 @ 4:27 pm:

    Justices were unanimous so …..


  21. - twowaystreet - Thursday, May 23, 19 @ 4:35 pm:

    I would love to see the number of food trucks in Chicago that convert to brick and mortar and what the average length of time that has taken for conversion. I know of a few and they continue to operate both for a number of years successfully.

    Also, I’ve never heard of a restaurant closing down solely based on food truck outside of their business. NYC has a way larger food mobile food vendor culture and they don’t seem to have these issues. Some streets are restricted but doesn’t seem to be based on the existing businesses.

    There are many other ways Chicago could help restaurants and retail that doesn’t include them limiting food trucks based on existing restaurants.


  22. - California Guy - Thursday, May 23, 19 @ 4:35 pm:

    Is it just me or does it seem odd to read a court opinion talking about the importance of “stabilizing” the neighborhood. Seems incredibly subjective and not really based on any kind of study, objectivity, etc. It’s just the personal opinion of the judge.

    How do the justices know that requiring a 200ft separation “balances” the interests of brick and mortar with food trucks?


  23. - PublicServant - Thursday, May 23, 19 @ 4:51 pm:

    ===Interesting that the opinion was authored by Justice Ann Burke. I wonder how much involvement her husband had in creating the regulation.===

    Expect to see Eddie B’s Irish Pub opening soon.

    Motto: We proudly serve anybody that somebody sent.


  24. - Cook County Commoner - Thursday, May 23, 19 @ 5:38 pm:

    Maybe more importantly is that it took seven years for this case to crawl its way up to the Illinois Supreme Court.


  25. - ArchPundit - Thursday, May 23, 19 @ 5:51 pm:

    ——It’s really not even zoning. It’s control of a city’s streets.

    That’s a good point I hadn’t thought of because the argument was made like a zoning argument, but if you look at the majority of regs they are about streets.


  26. - Archpundit - Thursday, May 23, 19 @ 5:56 pm:

    —-How do the justices know that requiring a 200ft separation “balances” the interests of brick and mortar with food trucks?

    They don’t which is the point. They are deferring to the City Council as a form of judicial restraint


  27. - Downstate Illinois - Thursday, May 23, 19 @ 6:04 pm:

    I think it’s an unconstitutional violation of the 14th Amendment requirement of equal treatment under the law. The government shouldn’t be picking winners and losers (though I know they do time after time).


  28. - Back to the Mountains - Thursday, May 23, 19 @ 7:53 pm:

    @Downstate,

    It’s not an equal protection issue. No-one is being denied equal protection of the law. Just because one group of people can no longer lawfully conduct a particular course of conduct does not create an equal protection issue.

    I dunno if this will help or not, but think about it this way: if your interpretation of the equal protection clause was correct, you wouldn’t be able to pass a law about functionally anything unless compliance with the law was made voluntary. Literally everything from zoning codes to murder statutes would create equal protection claims because every enactment, to some degree, tells a group of people they cannot do something which, prior to the passage of the enactment, was not impermissible.


  29. - Yellow Dog Democrat - Thursday, May 23, 19 @ 11:04 pm:

    How did this case even make it to the Supreme Court?

    Cities can ban you from parking your car in the street with a for sale sign. You don’t think that can stop you from opening up a restaurant on the curb?


  30. - James Knell - Friday, May 24, 19 @ 10:23 am:

    Shut up and eat your hotdog.


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