While many residents in Omaha, Nebraska are welcoming the growth of food trucks in the city, one restaurant owner is fed up.
Michael Henery owns Michael’s Cantina at the Market, a Mexican restaurant located in the city’s Old Market district. Rather than up his game and compete with Omaha’s nascent food-truck industry, Henery has sued the city in an attempt to force it to effectively put his mobile competitors out of business.
Among other things, Henery’s lawsuit complains that Omaha is not forcing the trucks to move every 30 minutes per a city ordinance and that the city’s laws do not apply Omaha’s 2.5 percent restaurant tax to food trucks.
It is not clear, according to the city, if food trucks are subject to the 30-minute time limit (traditionally, the city has applied the restriction to people selling merchandise from the trunks of their cars). And Omaha Food Truck Association President Kelly Keegan also correctly argues that the 30-minute rule is “an archaic law that goes back to the ding-ding ice cream trucks of the 1960s.”
Indeed, if food trucks have to comply with the 30-minute limit, they would be forced to spend a large portion of their days moving from location to location instead of serving their customers. That doesn’t benefit the trucks or hungry consumers. And many modern gourmet trucks contain grills and fryers that make it practically impossible to move that frequently. Thankfully, food truck owners are “working with the city” to modernize the ordinance.
Henery’s lawsuit also complains that Omaha’s 2.5 percent restaurant tax is unfair because it does not similarly apply to food trucks. He wants to block the city from collecting the tax and to refund the taxes his restaurant has paid–at least $100,000 according to the lawsuit. But Keegan has said that the city’s food truck owners “have no problem with collecting the tax and will follow whatever rules are expected of us.”
Unfortunately, Henery’s gambit of using the government to stifle his competition is all too common. A 2011 report by the Institute for Justice, Street of Dreams, found that nearly 20 of America’s 50 largest cities had duration restrictions on how long mobile vendors could operate in one location, even for as little as 10 minutes. These laws often apply even to food trucks operating on private property with an owner’s permission.
Proximity bans are another common regulatory barrier. Last week, IJ joined with food truck owners in Baltimore to challenge the city’s ban on mobile vendors operating within 300 feet of brick-and-mortar establishments that sell similar types of food, merchandise or service. IJ has successfully litigated on behalf of vendors in Atlanta, El Paso, San Antonio and San Juan, and is currently litigating on behalf of mobile vendors in Chicago and Hialeah, Florida.
It is good to see that Omaha is working with its food trucks to integrate them into the economy rather than protecting brick-and-mortar businesses from competition. Here’s to hoping that Henery’s lawsuit doesn’t derail those good first steps.