May 20, 2019

By Justin Pearson

One of the hardest parts of being an IJ attorney is that we routinely set out to do things that no one has ever done before. One of the best parts of the job is when we succeed. Perhaps nowhere is this challenge—and payoff—bigger than in our defense of the right to earn an honest living. Just ask small-business owners Benny Diaz and Brian Peffer.

Benny and Brian each own and operate food trucks near Fort Pierce, Florida. Knowing that Benny’s and Brian’s many fans follow their trucks wherever they go, local business owners invited them to set up on their properties in Fort Pierce. Unfortunately for these business owners, Benny and Brian, and their customers, a handful of Fort Pierce’s restaurant owners had persuaded the government to ban competition, making it a crime to operate a food truck within 500 feet of any restaurant.

To overcome this ban, Benny and Brian faced a daunting challenge. Regular readers of Liberty & Law will know that laws like this are subject to the most extraordinary sort of judicial deference: the rational basis test. The extent of that deference is such that, when IJ was founded in 1991, no federal appellate court had struck down this kind of protectionist economic regulation since before the New Deal—an unbroken, decadeslong streak of government wins at the expense of economic liberty.

But through 28 years of strategic, incremental victories, IJ has changed the game on this issue. As a result, we set out not only to win for Benny and Brian but also to secure a preliminary injunction—a ruling that said we were so likely to win this case that our clients should not even have to wait for a final verdict to start competing. In 1991, a ruling like that was unthinkable.

No longer. In February, the court ordered a preliminary injunction in a rational basis case, freeing Benny and Brian to operate their food trucks in Fort Pierce for the duration of the litigation. With this decision under our belt, the likelihood of turning our preliminary victory into a permanent one is better than ever.

Justin Pearson is managing attorney of IJ’s Florida office.

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