Operating a food truck is hard but rewarding work. For many, it is an opportunity to earn an honest living doing something that they love. In the last decade, Wilmington’s food truck scene has blossomed, with dozens of trucks serving a veritable cornucopia of different dishes. Their success is a testament to Wilmington’s willingness to roll out a red carpet, rather than roll out red tape. As a result, food trucks have enhanced Wilmington’s food scene, while creating new jobs and introducing diners to new dishes.
Take, for example, Michelle Rock. Michelle grew up in New Orleans eating authentic cajun cuisine. After moving to Wilmington, she threw caution to the wind and gave up her office job to start Momma Rocks Desserts, which melds her Louisiana heritage with her passion for baking. Her fans fell in love with her New Orleans-inspired cupcakes, cakes, and pastries. The success of Momma Rocks helped her open her second truck, T’Geaux Boys ( pronounced “To Go Boys”), which serves up authentic cajun creations, like Crawfish Cakes or muffaletta sandwiches.
Michelle’s success is a testament to her entrepreneurial spirit and the thousands of hours she’s spent behind a wheel, a skillet, or an oven.
Michelle’s success is mirrored by Aaron and Monica Cannon, who own A &M’s Red Food Truck, and Harley Bruce, who operates Poor Piggy’s BBQ & Catering truck. Together, this team of rolling entrepreneurs have turned hard work into an honest living, and along the way they worked with towns throughout the Wilmington area to help them update their laws to allow trucks to coexist with brick-and-mortar restaurants.
Carolina Beach—a history of unconstitutional protectionism.
Carolina Beach has never been welcoming to food trucks. A quaint, beachside town near Wilmington, the local government has always been content to let ocean views, rather than dining options, attract visitors.
For years, Carolina Beach’s town council allowed outdated ordinances to serve as a practical ban on any food trucks that dared to cross the bridge from Wilmington. From time to time, the town council made exceptions for food trucks at special events, but beyond that, the council made it nearly impossible to operate a food truck.
Recently, the popularity of food trucks in the surrounding communities became too much for even Carolina Beach’s town council to ignore. In an effort to keep up with nearby food-truck-friendly towns, the council said it would modernize its food-truck laws.
But the council went about it all wrong. Rather than do what was best for their residents or comply with the North Carolina Constitution, the council went to local brick-and-mortar restaurant owners for ideas.https://carolinabeach.civicweb.net/document/7426?splitscreen=true&media=true&attachmenturl=%2Fdocument%2F6915.">1 The local restaurant owners’ responses were as predictable as they were unconstitutional: Of course, food trucks should be allowed, just as long as local restaurant owners are the only ones who can operate them.2
The restaurant owners’ ridiculously self-serving response did not stop the council from doing their bidding. For the first time in decades, in April 2018, food trucks were technically allowed on the streets of Carolina Beach, but only if the trucks’ owners had also owned brick-and-mortar restaurants in Carolina Beach for at least one year.3 So, the upshot was that the “reform” was really a ban by another name, and in the end, none of Wilmington’s food trucks satisfied the town’s protectionist requirements.
Unlike other cities that regulate food trucks, Carolina Beach was honest about its anti-competitive agenda. The town planner has explained that, “direction from council as far as food trucks in the past has been they did not want it to be seen as competition for . . . brick and mortar businesses[.] We would not let an outsider come over the bridge and set up shop when they’re not an existing business.”https://portcitydaily.com/local-news/2017/12/12/food-truck-owners-say-code-is-written-to-restrict-their-business-in-carolina-beach-biz/.">4 And the rule does just that, turning the bridge from Wilmington to Carolina Beach into a drawbridge that has been pulled up.
Carolina Beach’s ban on competition violates the North Carolina Constitution
Michelle, along with her fellow food truck owners, have a constitutional right to earn an honest living selling food in Carolina Beach. In North Carolina, cities cannot pick winners and losers to protect one group of business owners from competition.
To vindicate those rights—and to stop Carolina Beach’s unlawful bid to protect local restaurants from competition—three food trucks have teamed up with the Institute for Justice to file a lawsuit against Carolina Beach. Their lawsuit asks the North Carolina courts to strike down the town’s restaurant requirement under the North Carolina Constitution, so that they can finally be allowed to offer more choices to Carolina Beach’s residents and visitors.
Violating even a single provision in the North Carolina Constitution would lead a court to throw out the law. Carolina Beach has managed to violate three separate constitutional provisions: the state constitution’s protection of the right to earn an honest living, its equal protection clause, and its anti-monopoly clause.
The state constitution recognizes a fundamental right to “the fruits of one’s own labor,” and any law restricting that right must be designed to protect the public health and safety.5 Carolina Beach’s disrespect towards the right to earn an honest living flies in the face of the North Carolina Constitution’s express protection for this right. But these types of government roadblocks don’t protect public health or safety, just restaurant owners’ bottom lines. And economic protectionism for its own sake is unconstitutional.6
Second, the rule violates the constitution’s equal protection provision—the idea that government should treat all people equally.7 It can only treat them differently if it has a substantial and constitutionally legitimate reason for doing so. And political favoritism doesn’t count.
Finally, Carolina Beach’s rule that only local restaurants can operate food trucks violates the Anti-Monopoly Clause of the North Carolina Constitution. The clause states that “monopolies are contrary to the genius of a free state and shall not be allowed.”8 This means the government may not grant the exclusive right to practice a “common trade” to some group of favored people.9 The North Carolina Supreme Court has relied on the provision to strike down occupational licensing requirements for ceramic tile contractors, photographers, and dry cleaners and pressers.10
Carolina Beach’s disregard of the North Carolina Constitution is particularly striking in that the town is also disregarding national and local trends. In recent years, the beneficial impact of food trucks has been well-chronicled, leading countless municipalities to amend their laws in order to be more welcoming to this rolling entrepreneurs. Sadly, the town council has combined ignorance of the food-truck issue with ignorance of the state constitution in order to reach a result that makes everyone worse off—save for the local restaurant owners. Thankfully, win in this lawsuit would force the town to finally do the right thing.
Michelle Rock, Momma Rock’s Dessert Truck & T’Geaux Boys
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.
Aaron and Monica Cannon, A & M’s Red Food Truck
Aaron and Monica Cannon run A & M’s Red Food Truck. They met in San Diego while serving in the military and cultivated a deep appreciation for good tacos. They decided to channel their passion and experience into a business opportunity by starting up a food truck. The two decided to strike out to the East Coast and see if people would appreciate their unique taco and slider creations. They get rave reviews across the board.
Harley Bruce, Poor Piggy’s BBQ & Catering
Harley Bruce owns Poor Piggy’s BBQ & Catering, which was the first food truck in Wilmington and serves up award-winning North Carolina barbecue. Harley started out working for Poor Piggy’s part time and bought the truck when the previous owner was ready to retire.
The Defendants are the town of Carolina Beach, North Carolina. Carolina, along with its Mayor and all members of the town council, who are named in their official capacities. The town council passed and enacted Carolina Beach’s brick-and-mortar restaurant requirement in April 2018.
The Litigation Team
The litigation team consists of IJ senior attorney Justin Pearson and IJ attorney Johanna Talcott. North Carolina attorney Nicole Moss serves as local counsel.
The Institute for Justice
The Institute for Justice is a public-interest law firm that brings challenges nationwide in support of fundamental individual liberties. IJ has successfully challenged restrictions on economic liberty across the nation through its National Street Vending Initiative.
IJ’s National Street Vending Initiative is a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and the court of public opinion. As it has done across the country, IJ stands ready to challenge such restrictions, and it will help vendors oppose attempts to use unconstitutional protectionist laws to shut them down .
IJ’s most recent victories on behalf of food-truck entrepreneurs include: