The pandemic has been especially hard on the food service industry, with workers across the country finding themselves suddenly out of jobs. Elijah Durham lost his job as a chef at a Florida nursing home in the middle of the pandemic. But Elijah didn’t give up. He and his wife Ashley purchased a truck and opened SOL Burger, intending to serve locally sourced food in downtown Tarpon Springs, Florida.
You would think that Tarpon Springs would have welcomed Elijah and Ashley with open arms. Small-scale culinary businesses like SOL Burger provide customers with more food options. They bring increased foot-traffic to areas, benefitting all businesses. And they improve the overall local economy, both for vendors themselves and restaurants too.
Not surprisingly, a local craft brewery invited SOL Burger to serve from its parking lot.
But some restaurant owners bristle at mobile competition. When they complained, the Tarpon Springs Board of Commissioners reacted by banning all food trucks from the downtown area except for those operated by brick-and-mortar restaurants located in Tarpon Springs.
The ban wrecked Elijah and Ashley’s business plans, forcing them to operate outside the city. But the ban also hobbled local property owners by preventing them from boosting their foot traffic by hosting Elijah, Ashley, and others not fortunate enough to own a brick-and-mortar restaurant.
What Tarpon Springs’ ban has done is not just wrong, it is unconstitutional. The Florida Constitution prohibits using government power to benefit a favored economic group at the expense of others. Yet that is exactly what Tarpon Springs’ ban has done: It pick winners and losers in the marketplace instead of allowing customers to make that choice.
Elijah and Ashley joined forces with the Institute for Justice and filed a lawsuit asking the court to find that the Commissioners’ favoritism violates the Florida Constitution. Unfortunately, without a good location to operate from, SOL Burger struggled financially and in early 2022 Elijah and Ashley had to sell the business and move away from Tarpon Springs.
Tarpon Springs residents Elijah and Ashley Durham open their food truck—SOL Burger.
Operating a food truck is hard but rewarding work. For many, it is an opportunity to make a better life for themselves and their family. It can also be a steppingstone to one day opening a restaurant. For Tarpons Springs residents Elijah and Ashley Durham, operating a food truck puts dinner on their family’s table and keeps a roof over their children’s heads.
In the middle of the pandemic, Elijah lost his job as a chef. Rather than give up, Elijah and Ashley opened a food truck—SOL Burger. They planned to use all local ingredients: buns from a local bakery, lettuce grown on Florida farms, and beef from cattle raised in-state. They hoped that all the money they spent on local products would, in turn, feed the local economy.
Elijah and Ashley thought their timing could not be better. Thanks in large part to IJ’s efforts, in 2020 the Florida Legislature passed the Occupational Freedom and Opportunity Act. Among other things, this new law made it illegal for cities to completely ban food trucks. This forced Tarpon Springs to give up its former city-wide food-truck ban. With the path now clear, Elijah and Ashley searched for an ideal location to operate in the city. In early September, they found one at a local craft brewery and entered into an agreement to operate there three to four days a week. It was great. The brewery’s owners, their customers, and Elijah and Ashley were all happy with the arrangement.
Tarpon Springs bans food trucks from downtown—with one big exception.
Unfortunately, Tarpon Springs quickly got to work making mincemeat of Elijah and Ashley’s plans. At the behest of local brick-and-mortar restaurants, the Board of Commissioners passed a new ordinance in late September that makes it nearly impossible for most food trucks to operate any place in town where customers like to go. Instead, the city has relegated most food trucks to a lonely section where there are no craft breweries (which are typically the most common businesses to invite food trucks). Meanwhile, the city council made sure the limits did not apply to food trucks operated by the very local brick-and-mortar restaurant owners who pushed for the new ordinance. Those food trucks can still operate downtown. For Elijah and Ashley, this means that they cannot operate their food truck in the town where they live, no matter how many property owners and customers invite them.
Tarpon Springs’ ban is unabashed economic protectionism. By design, it does two things: (1) facially comply with the new state law, while (2) protecting incumbent businesses from competition. It allows every brick-and-mortar “food or drink establishment” to operate a food truck on its own property, regardless of where the property is located—but only if that food truck is owned and operated by the owner of the brick-and-mortar establishment.[i] All other food trucks are banned from operating anywhere other than a narrow section of land by the highway that the city designated merely to comply with the Occupational Freedom and Opportunity Act.[ii]
The Board of Commissioners did not even try to hide their unconstitutionally protectionist motivations. The Mayor summed up their views when he said that: “We have 55 restaurants in town, and they spent hundreds of thousands of dollars to open, and now someone who opened a business to serve wine can lease a food truck and it becomes a restaurant. I don’t believe that.”[iii]
Tarpon Springs’ ban has placed ever-increasing burdens on Elijah and Ashley. It ruined their ability operate locally, forcing them to go outside the city and work special events as their only means of staying afloat. Elijah and Ashley invested everything they have in SOL Burger, and this ordinance may be the difference between the success or failure of their business.
The Florida Constitution forbids Tarpon Springs’ protectionist ordinance.
Tarpon Springs’ brick-and-mortar restriction is unconstitutional. The Florida Constitution forbids government officials from wielding their power to choose winners and losers in the marketplace. The Florida Supreme Court has explained that the state constitution “banish[es] the thought that the state may subordinate the right of one group of citizens to advance the welfare of another.”[iv] But Tarpon Springs’ ban undermines Elijah and Ashley’s right to earn a living just to supposedly advance the economic welfare of brick-and-mortar restaurants.
Tarpon Springs’ protectionist ban violates the Florida Constitution’s Due Process[v] and Equal Protection[vi] Clauses, as well as additional protections for basic, inalienable rights, including the right to be rewarded for industry.[vii]
The Due Process Clause protects Elijah and Ashley’s right to earn an honest living free from unreasonable government regulations. It forbids Tarpon Springs from denying Elijah and Ashley their right to provide customers with more choices for no other reason than to protect brick-and-mortar restaurants from competition.
The Equal Protection Clause protects Elijah and Ashley from being treated differently unless there is a constitutionally legitimate reason to do so. Protectionism is not one of them. Under the Florida Constitution, there is no legitimate reason to allow restaurant-owned food trucks to operate anywhere in the city while simultaneously banning all other food trucks.
Indeed, not only do these standard provisions protect Elijah and Ashley’s rights, but Elijah and Ashley will also be able to rely on the Florida Constitution’s specific protection for the “right to be rewarded for industry,” which the Florida Constitution describes as both “basic” and “inalienable”.[viii]
The Litigation Team
The litigation team consists of IJ Florida Office Managing Attorney Justin Pearson, IJ Constitutional Law Fellows Adam Griffin and Katrin Marquez.
The Institute for Justice
The Institute for Justice is a public-interest law firm that litigates nationwide to vindicate individual liberties. IJ has successfully challenged restrictions on the economic liberty of food trucks to operate across the nation through its National Street Vending Initiative, a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions. IJ has successfully challenged unconstitutional food-truck restrictions in Fort Pierce, Florida; Carolina Beach, North Carolina; El Paso, Texas; Fish Creek, Wisconsin; Louisville, Kentucky; San Antonio, Texas; and South Padre Island, Texas. And IJ stands ready to continue challenging such restrictions to help vendors oppose attempts to use unconstitutional protectionist laws to shut them down.
[i] Tarpon Springs, Florida, Comprehensive Zoning and Land Development Code § 56.06(A)(9).
[ii] Id. at § 56.05.
[iii] Jeff Rosenfield, Tarpon commission passes food truck ordinance, Suncoast News (Sept. 30, 2020), http://www.suncoastnews.com/news/tarpon-commission-passes-food-truck-ordinance/article_b4bb489a-0281-11eb-bd9f-ab49d01d4f96.html.
[iv] Liquor Store, Inc. v. Cont’l Distilling Corp., 40 So. 2d 371, 374 (Fla. 1949).
[v] Fla. Const. art. I, § 9.
[vi] Fla. Const. art. I, § 2.
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