Rotten Law Spoiling Produce Entrepreneur’s Right to Earn an Honest Living

November 20, 2009

You would think that in this economy, government would be trying to eliminate—not erect—barriers to entrepreneurs. Not so in San Juan County, Wash., where the local government recently passed an ordinance designed to force certain sidewalk vendors out of business.

But one San Juan entrepreneur is fighting back.

On September 16, produce vendor Gary Franco teamed up with the IJ Washington Chapter (IJ-WA) to challenge the anti-vending ordinance and vindicate his right—and the right of all Washingtonians—to earn an honest living.

Gary has sold produce in and around San Juan since the 1970s. He grows some of his produce himself but purchases most of it from other local farmers. All the produce Gary sells is Washington-grown and usually picked fresh the morning he sells it. Gary’s produce is typically half the price of that in local grocery stores.

While Gary’s customers love the products and service he offers, others seek to shut him down. Unhappy with the competition that vending presents, a few brick-and-mortar business owners lobbied the county council for a law to eliminate vendors like Gary.

The ordinance, adopted in July, requires vendors in public places to obtain a permit and pay $50 for each day they wish to sell—that is, $50 per day for the right to earn a living. As bad as that is, a vendor can only obtain the permit if he receives the written consent of all businesses within 25 feet of where he plans to sell. In other words, the ordinance gives business owners the power to veto their competitors.

The council claimed the ordinance was needed to protect public health and safety, but the real motivation—economic protectionism of some businesses at the expense of others—is clear. During the hearing on the ordinance, the county sheriff testified that he had received numerous calls from brick-and-mortar business owners complaining that vending was “peeling off some of their own business,” and a councilmember explained that written consent of brick-and-mortar businesses would be required to vend because “the business owners are the people who are really concerned about this.”

Of course, there are some vendors the county likes. To protect them the same way it protected the brick-and-mortar folks, the council included a number of exemptions for vending by the Lions Club, Kiwanis, Girl Scouts, farmers selling their own produce and ice cream trucks. The council offered no explanation for these inconsistencies, and they lay bare the ordinance’s real goal: Protecting businesses the county likes at the expense of those it does not.

Gary and IJ-WA’s challenge to the ordinance is simple: The Washington Constitution—specifically, its Privileges or Immunities Clause—protects the right to earn an honest living, especially against the kind of economic protectionism at play here. A victory for Gary will be a victory for the overwhelming majority of Americans who believe in the right to earn an honest living and who recognize that freedom for entrepreneurs is the key to economic recovery.

Michael Bindas is an IJ staff attorney.

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