If a restaurant is allowed on private property, a food truck should be too. Unfortunately, the city of Jacksonville, North Carolina, decided that protecting restaurants from competition by food trucks is more important than equally respecting its residents’ fundamental rights to earn an honest living and to use their private property in a safe and reasonable manner.
Nicole Gonzalez owns property in Jacksonville where she’d like to host a food truck alongside her general goods store there; Anthony Proctor (“Tony”) and Octavius Raymond (“Ray”) are both Marine veterans and hardworking food truck entrepreneurs who want to accept invitations from property owners like Nicole to set up and sell their food to Jacksonville’s hungry residents. Nicole could open a restaurant on her property where Tony could sell the Florida-style seafood he now sells elsewhere from his food truck, “The Spot,” or she could do the same for the Philly cheesesteaks Ray serves the hungry Marines at Camp LeJeune from their food truck, “The Cheesesteak Hustle.” What Nicole cannot do, however, is simply let Tony or Ray park on her private property and sell food from their food trucks.
That is because Jacksonville officials take a dim view of food truck businesses, including their importance to Tony and Ray’s efforts to earn a living, and to Nicole’s plans for her private property. The city prefers to “help” brick-and-mortar restaurants by quelling food truck freedom: Food trucks can’t operate within 250 feet of certain properties, such as any property with a brick-and-mortar restaurant, where every other type of food vendor is allowed. The city also specifically and narrowly restricts signage relating to food trucks while allowing every other kind of food vendor to display more and larger signs on the very same property. Finally, the city set the permit fee for food trucks not to pay for the city’s cost to regulate food trucks, but rather to burden food trucks approximately as much as a restaurant’s property taxes. So, while food trucks may technically be allowed to compete with restaurants in Jacksonville, the city takes steps to stack the deck against them.
The city’s stifling economic protectionism violates the North Carolina Constitution. People have a fundamental right to use their private property in safe and reasonable ways free from arbitrary, irrational and protectionist government regulations, such as by inviting someone to earn an honest living on that property by selling safe and quality seafood or cheesesteaks from a food truck. They also have a right to equal treatment under the law, meaning the city can’t prohibit food trucks in areas where it allows similar restaurants unless it has a good and legitimate reason for singling food trucks out. And people have the right to use their private property and earn their honest living without the government suppressing their truthful and accurate speech or charging them excessive and unreasonable permit fees. That’s why Nicole, Tony and Ray have teamed up with the Institute for Justice to fight the city’s unconstitutional economic protectionism.
Nicole Wants to Host Food Trucks Like The Spot and The Cheesesteak Hustle at Her Business on Her Private Property in Jacksonville.
Nicole, Tony and Ray are all entrepreneurs working hard to live out their version of the American Dream. Nicole owns property where she wants to host a food truck to help grow her own business there. Tony and Ray want to earn a living by accepting invitations from property owners like Nicole to sell food from their food trucks on private property in Jacksonville.
Nicole and her family have lived in Jacksonville nearly her whole life. Today, she and her husband, Jaime, own and run Northwoods Urban Farm—a general store and small engine repair shop. Nicole and Jaime own the property where the store is located and want to host a food truck there. Nicole sees that as a tremendous opportunity. Her existing customers will have the benefit of a convenient place to grab food while shopping at her store (or waiting for an engine repair). And the food truck might attract new customers to the store. Nicole even tried to start hosting a food truck on her property—which had been the site of a brick-and-mortar restaurant—in the past, but a city code enforcement officer showed up and ordered them to stop. Nicole followed the city’s orders, but this put her plans for her private property and general goods store on hold.
Tony has lived in Jacksonville for more than 20 years, raising his two children there with his wife of 30 years. After 15 years in the Marine Corps, he began working as a pastor at the New Beginnings Christian Center on Bell Fork Road. Years back, he started cooking seafood for church functions. The congregation’s excitement and love for his seafood gave Tony the idea to start making a living that way. Today, Tony and his wife own and operate a food truck selling Florida-style seafood. Tony named the truck “The Spot,” and he typically drives the truck the eight or so miles to Camp LeJeune to serve hungry Marines at lunchtime, or he sets up at his church on the edge of the town for hungry parishioners. He enjoys serving people his “good mood food,” and he wants to be able to serve it to more people in Jacksonville.
After serving in the Marines, Ray developed the business plan for their food truck. Today, he normally serves up his cheesesteaks from their food truck—“The Cheesesteak Hustle”—to hungry Marines at Camp LeJeune, as well as folks in cities within driving distance of Jacksonville. Ray wants to serve his delicious food to Jacksonville’s residents, but that hasn’t been easy. In fact, although he leases property for a commercial kitchen on Wilmington Highway in Jacksonville and has the property owner’s permission to operate the food truck there, the city prohibits them from doing so. So, instead, Ray is forced to travel with his food truck—sometimes hours away from Jacksonville—just to earn a living.
The City Stifles Food Truck Businesses and Supportive Property Owners Just to Protect Brick-And-Mortar Restaurants from Competition.
The city’s short, but antagonistic, history with food trucks has been marked by its desire to protect brick-and-mortar restaurants from competition. Until 2021, the city essentially banned food trucks, except for a limited number of “special events.” Public pressure, however, led city officials to enact regulations that the officials claimed would allow food trucks to operate in Jacksonville. In practice, the city’s regulations heap burden upon burden on food trucks, while exempting all other food vendors, in order to make sure that brick-and-mortar restaurants are not forced to compete.
Three regulations in particular highlight the city’s goal of insulating brick-and-mortar restaurants from competition. First, the city severely restricts the places where food trucks are allowed to operate. Second, the city uniquely limits food trucks’ speech with its regulation on signs. Third, the city requires food truck owners to pay a ridiculously large permit fee that is much larger than other towns (some of which do not charge any fee at all).
The city uniquely limits the space where food trucks can operate by banning them within 250 feet of certain areas. Although they could host any other kind of food vendor, people who own private property within 250 feet of any other parcel with a (i) brick-and-mortar restaurant, (ii) food truck, or (iii) residential property, commits a misdemeanor if they host a food truck there. 1 So, even though a single food truck cannot operate on private property next door to a restaurant or a residential neighborhood, any other food vendor could, including restaurants with outdoor seating (until 2 a.m.) and live music (until 10 p.m.) or restaurants with drive-through service.
Even where food trucks find space to operate, the city uniquely and severely burdens their ability to speak to customers with signage. While brick-and-mortar restaurants can use a seemingly unlimited number of standalone signs, food trucks may only use one 5’x5’ A-frame sign. Moreover, that solitary sign cannot be externally lighted and cannot be placed more than 20 feet from the food truck itself. Additionally, food truck signage may not extend, even a modest amount, above the top of the food truck, even though on the exact same property another food vendor could attract customers with signs as tall as 35 feet. 2 These restrictions make it more difficult for new and existing customers to find food trucks, which both makes Jacksonville’s roads less safe and shields brick-and-mortar restaurants from food truck competition.
In addition to operational and speech restrictions, the city further protects restaurants from food trucks by imposing an unreasonable annual permit fee on food trucks: Jacksonville residents must pay the city $300 for the permit, while non-residents must pay $500. During public meetings, city officials explained that the fee’s purpose was to burden food trucks at least as much as brick-and-mortar restaurants are by property taxes, saying the city needed to extract those “comparable” amounts from food trucks to be “fair” to brick-and-mortar restaurants. 3 Of course, the city officials overlooked the fact that property taxes are paid by property owners, not businesses leasing space there, and property owners hosting food trucks have already paid that same property tax.
The City’s Anti-Food Truck Regulations Violate the North Carolina Constitution
The city burdens property owners and food trucks in those ways merely to benefit restaurants, which violates North Carolina’s Constitution in five ways. The 250-foot proximity bans violate the Constitution’s Fruits of Their Own Labor Clause, Law of the Land Clause and Equal Protection Clause, while the signage restrictions violate its free speech protections. And the excessive annual permitting fee is both ultra vires and unconstitutional.
The 250-foot proximity bans violate the North Carolina Constitution’s Fruits of Their Own Labor, Law of the Land and Equal Protection Clauses. 4 Under those clauses, people have a fundamental right to use their property and earn an honest living in safe and reasonable ways free from irrational, arbitrary, inequitable and protectionist regulations. Put another way, the government cannot burden ordinary property uses and occupations unless the government does so in a way that promotes a legitimate government interest, like health and safety, in a direct, real and substantial way. 5 Here, the city’s restrictions serve only economic protectionism for restaurants, which is not a legitimate government interest. Moreover, the city targets only food trucks with these restrictions, even though food trucks are not unique in any relevant way when compared to other food vendors. For example, if a property owner can open a restaurant, bakery or gas station with food service on private property next door to a single-family residence, there’s no rational reason to stop them from hosting a food truck on their private property. And yet, the city does just that. That makes no sense, and it violates the North Carolina Constitution.
The city’s signage restrictions violate the state constitution’s protections for free speech as well. The government is not allowed to single out particular businesses for unique speech restrictions, 6 but that is precisely what the city is doing here. Food trucks alone are subject to the city’s unique signage restrictions (i.e., only one 5’x5’ A-frame sign). And they are subject to those unique signage restrictions just because they are food trucks.
Finally, the city’s annual permitting fee is unreasonable and ultra vires. The North Carolina Supreme Court has held that cities cannot impose unreasonable “user fees,” such as those that are unrelated to the government’s cost to provide a service or to regulate some activity. 7 Here, the city’s annual permit fee bears no relationship to such costs, if there even are any to the city. (The Onslow County Health Department, not the city, for example, handles health and safety oversight of food trucks.) Instead, the city charges food truck entrepreneurs fees in amounts it hopes would reflect property tax burdens on Jacksonville’s restaurants. But a restaurant’s property taxes have nothing to do with the city’s costs to regulate food trucks. And businesses do not pay property taxes; property owners do, including the property owners who want to host food trucks. Thus, the annual permitting fee for food trucks is unreasonable and ultra vires.
The Litigation Team
Tony, Nicole and Ray are represented by Institute for Justice Attorney Bob Belden, IJ Senior Attorney Justin Pearson, and IJ Litigation Fellow Trace Mitchell, assisted by attorney Nicole Moss of Cooper & Kirk, PLLC, as local counsel.
About the Institute for Justice
Founded in 1991, the Institute for Justice is a non-profit, public interest law firm and the nation’s leading advocate for private property rights, economic liberties, and free speech, as well as for educational choice. For over 30 years and at no cost to clients, IJ has litigated in courts of law and in the court of public opinion to defend those rights. In its National Street Vending Initiative, IJ has fought protectionist burdens on the ability of food truck owners to earn an honest living, including IJ’s successful challenge to a North Carolina city that prohibited all food trucks not owned by a brick-and-mortar restaurants in the city. IJ has also led the fight against unreasonable property regulations, such as in IJ’s recent victory securing a permanent injunction against a Texas city that tried to stop an auto mechanic from opening his two-bay shop because he didn’t have 28 parking spots. And IJ has long challenged governmental sign codes that cities use to censor speech they do not like in favor of speech they do like. For example, IJ successfully challenged one California city’s sign code that prohibited a married couple from advertising their family-owned gym by placing a modest sandwich board near a sidewalk, even though the city would allow the exact same sign in the exact same place if it advertised for something else.