Supervisor Scott Wiener has proposed a new food truck ordinance that would both tighten and moderately ease vending restrictions in the City by the Bay. Wiener’s new ordinance would make it illegal for any street food vendor to sell within 50 feet of a brick-and-mortar restaurant—a restriction designed solely to protect restaurants from good old-fashioned competition. This is worrisome for four reasons.
First, these types of anticompetitive regulations are unconstitutional. As noted last month when Las Vegas passed its own proximity ban:
“Bureaucrats don’t have the authority to protect businesses from perceived competitors. That’s the reasoning behind a U.S. Ninth Circuit Court of Appeals (which includes Las Vegas) case that challenged a licensing scheme for pest exterminators in California. In Merrifield v. Lockyer, the court ruled “mere economic protectionism for the sake of economic protectionism is irrational” and does not serve a “legitimate governmental interest.”
Second, San Francisco already has a proximity restriction in place! Right now, the city denies permits to vendors if they plan to sell within 300-feet of another restaurant selling “similar food.” Although the City is only supposed to “consider” this proximity restriction, in practice the city treats it as a complete ban.
Not only does the proposed ordinance add a mandatory 50-feet restriction, but it would make the supposedly discretionary 300-feet restriction apply to all restaurants, not just those selling similar foods. So Wiener’s proposal makes a protectionist ordinance even more protectionist.
Third, the ordinance doesn’t do anything to mitigate San Francisco’s costly and time consuming vending licensing scheme. Sadly underreported in most media coverage of food trucks are San Francisco’s atrocious “notice of intent” vending laws. If a street food vendor wants to sell in a new location, she must notify all businesses within a 300-foot radius of her requested spot. If anyone believes “their interests or property or that of the general public will be adversely affected” by a food truck or pushcart vending in that requested spot, they can write to the Department of Public Works (DPW) to protest. All it takes is for one restaurant owner fearful of competition to trigger a hearing. The DPW will then schedule a hearing and send out notices and take out ads in San Francisco newspapers. Adding insult to injury, the cost of all these notices and newspaper ads must be come out of the entrepreneur’s pocket, racking up thousands of dollars in red tape. The entire process often takes upwards to a year. And an entrepreneur has to endure this veto process minefield all before she’s served even one customer.
Finally, these regulations are completely unnecessary. San Francisco already has “good neighbor policies” on the books, i.e. policies to prevent food trucks from becoming “a nuisance to neighbors”: Vendors are required to pick up any trash left by their customers, not block driveways and keep a clean and quiet vending area. But of course the city is not concerned about food trucks being “good neighbors”’; it’s concerned with keeping the restaurants happy by driving out their competition.
However, Wiener’s new ordinance does have one sensible reform: It would let mobile vendors park closer to schools. Right now, vendors are not permitted to sell within 1,500 feet of any open school. Wiener would reduce the proximity ban to 500 feet away from middle schools and either 1,000 or 750 feet away from high schools. Unfortunately for San Francisco’s mobile entrepreneurs, this modest improvement is severely undermined by the rest of the proposed ordinance—which keeps much of The City by the Bay, at bay for food trucks.