Final Victory for Food Trucks in Fort Pierce: Judgment Proclaims City’s Former Anticompetitive Ordinance Unconstitutional

Institute for Justice · August 30, 2021

FORT PIERCE, Fla.—Late Friday afternoon, food truck entrepreneurs Benny Diaz and Brian Peffer achieved final victory in the lawsuit they filed in December 2018 alongside the Institute for Justice (IJ) that challenged Fort Pierce’s ban on food trucks operating within 500 feet of a restaurant. This consent final judgment entered by Judge Elizabeth Metzger will ensure that Fort Pierce cannot bring back its unconstitutional ordinance.

Fort Pierce’s proximity ban was one of the most stringent in the country, making it almost impossible to do business in the city. A Florida circuit court ruled in February 2019 that the ban likely violated the Florida Constitution and granted the plaintiffs’ motion for a preliminary injunction, allowing food truck vendors to operate in the city during the litigation. In response, Fort Pierce repealed the ban, but Benny and Brian would not drop their lawsuit until the city agreed never to bring back the ban. This judgment ensures that the food truck ban is gone for good.

“This final judgment is a victory for the Florida Constitution and the right to earn an honest living,” said IJ’s Florida Office Managing Attorney Justin Pearson. “The government is not allowed to pick winners and losers in the marketplace. That choice belongs to consumers.”

The law’s sole purpose was to protect existing restaurants from competition, a fact the city repeatedly mentioned while enacting the ban; in 2014, then-Commissioner Edward Becht said that the 500-foot ban exists because allowing food trucks to compete for business would, “hurt the brick-and-mortar businesses.”

But the Florida Constitution protects the right of individuals to earn an honest living free from unreasonable government interference. There is no legitimate justification for prohibiting a food truck from operating on a certain block because a brick-and-mortar business located almost two football fields away also sells food. Moreover, the Florida Supreme Court has repeatedly held that protectionism is not a legitimate government interest under the Florida Constitution.

Benny Diaz celebrated the final end to his legal fight with Fort Pierce with the knowledge that he will not be stopped from serving customers his delicious tacos at his Taco Trap food truck.

“This is fantastic news,” said Benny. “We filed this lawsuit to make Fort Piece freer for everyone. The preliminary injunction had already caused a huge increase in food trucks operating in Fort Pierce. This final judgment means that food trucks are here to stay. I am excited.”

“What Fort Pierce was doing was wrong,” said Brian. “The preliminary injunction was a great first step, but this final judgment means that the ban is gone forever. I am thrilled.”

Because of their lawsuit, numerous food trucks are now serving residents tasty treats and meals throughout Fort Pierce.

“Food trucks tend to be the first step towards building a larger business, and this is a process that should be encouraged, not obstructed,” said IJ Attorney James Knight. “With this judgment, future food truck entrepreneurs will be guaranteed the opportunity to thrive.”

The judgment declares that the food truck ban violated the Florida Constitution, awards one dollar in nominal damages to each plaintiff and awards the costs of litigation to the plaintiffs.

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San AntonioEl Paso, Texas; Carolina Beach, North Carolina; and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors.