Victory for El Paso Street Vendors

May 25, 2011

By Matt Miller

IJ’s National Street Vending Initiative recently scored its first victory when the city of El Paso repealed its protectionist regulations that had prohibited vendors from operating within 1,000 feet of any restaurant, grocer or convenience store, and also prohibited vendors from stopping and waiting for customers. These now-repealed restrictions made it almost impossible for mobile food vendors to vend legally in El Paso, turning the city into a “no vending” zone. El Paso’s reforms were a direct response to the Institute for Justice’s federal lawsuit brought on behalf of four mobile vendors.

IJ took up the cause of El Paso’s mobile vendors by representing four women who own and operate food trucks in the city. The lawsuit centered on our clients’ constitutional right to engage in their occupation free from unreasonable governmental interference. Mobile vendors have traditionally been required to comply with numerous laws and regulations, including traffic rules and food handling requirements. But a recent trend takes regulation a step further, beyond the police power of government and into the realm of naked economic protectionism.

Minimum-distance vending laws like El Paso’s do not protect the public—they protect brick-and-mortar restaurants from competition. Unfortunately, such restrictions are increasingly popping up across the nation as restaurant associations lean on the government to help cut out their competitors. Just to take two examples, Chicago bans street vendors from operating within 200 feet of restaurants and Baltimore bans vendors from operating within 300 feet of a business that sells similar food. The result is that it is almost impossible to find a legal spot to vend in popular commercial areas where you can find a restaurant on every block.

The goal of these restrictions is obvious: to make mobile vending—a traditional entry point to entrepreneurship in America—so difficult and so unattractive that people abandon the business entirely. The result is that restaurants have fewer competitors and consumers have fewer—and more expensive—options in the marketplace.

IJ’s national vending initiative seeks to vindicate the rights of vendors based on the simple principle that the Constitution does not allow government to pick winners and losers in the marketplace—to deprive people of their economic liberty merely so that their competitors can prosper.

Our victory in El Paso marks an important first step. The law was changed three months to the day after we filed our lawsuit. At the city council meeting where the restrictions were abolished, El Paso’s director of public health was asked about the justification for the 1,000-foot restriction around restaurants. He answered, “[T]here’s not a health reason or a Texas food rule that I can find that justifies that.”

Now El Paso mobile vendors can operate almost anywhere in the city. They can park at the curb during the lunch rush and stay there while customers come and go. In short, they can engage in the same traditional model of vending that they have been using for decades, and El Paso consumers will continue to enjoy the low prices, varied options and delicious flavors that vendors offer. And, as for IJ, we are already gearing up for our next tasty vending challenge.

Matt Miller is the IJ Texas Chapter executive director.

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