Court Says Lincoln Home Baker’s Lawsuit Challenging City’s Unnecessary Regulations May Proceed

Matt Powers
Matt Powers · October 28, 2020

OMAHA, Neb.—Yesterday, the Lancaster County District Court denied the city of Lincoln’s motion to dismiss, permitting home baker Cindy Harper’s lawsuit against the city to move forward. Cindy’s lawsuit, brought by the Institute for Justice (IJ) in partnership with Husch Blackwell LLP, challenges Lincoln’s decision to bring back regulations at the local level that were repealed by the state legislature. 

In 2019, the Nebraska legislature passed LB 304 to exempt home bakers from having to satisfy unnecessary permitting and inspection requirements. But in January 2020, Lincoln went rogue, unveiling new regulations designed to reimpose the same permitting and inspection requirements that the legislature deemed unnecessary. 

“I’m happy to be moving forward in this process,” said Cindy Harper. It’s good to be one step closer to the elimination of the unfair and inequitable regulations that Lincoln is imposing on its residents.” 

“Lincoln’s ordinance is an affront to local home bakers,” said IJ attorney Keith Neely. “Home-baked goods are just as safe in Lincoln as they are in the rest of Nebraska and the legislature intended to give home bakers the same opportunity to sell their goods whether they live in Lincoln, or Omaha, or Bellevue.” 

In denying the city’s motion to dismiss, the court appeared to agree. “There seems to be some tension” between LB 304 and Lincoln’s ordinances, the court explained. “[I]t is enough to say that the Plaintiff has plausibly alleged that the statute and ordinances are not consistent.” 

This case is part of IJ’s National Food Freedom Initiative. IJ is currently challenging similar regulations in North Dakota and has won constitutional challenges to Wisconsin’s ban on the sale of home-baked goods and to Minnesota’s restrictions on the right to sell home-baked and home-canned goods. IJ has also helped pass laws expanding the sale of homemade foods in several states across the country, including Kentucky, Maryland, Nebraska, West Virginia and Wyoming.