Andrew Wimer
Andrew Wimer · May 10, 2018

Fish Creek, Wis.—Last year, the owners of White Cottage Red Door, a Door County shop known for “everything cherry,” tried to satisfy their customers by opening a food truck in the parking lot next to the shop. But, unfortunately, the Town of Gibraltar’s board wasn’t thrilled with the new competition for existing brick-and-mortar restaurants. So, shortly after the food truck opened, the board promptly banned all businesses on wheels. Now, the owners of White Cottage Red Door and the Institute for Justice are fighting back. Today, they took their first step toward filing a lawsuit against the town board by filing an official notice that its unconstitutional ordinance must be repealed.

“White Cottage Red Door just wants to sell burgers and barbecue on its own property from a state and county-approved food truck,” said Milad Emam, an attorney with the Institute for Justice, which represents White Cottage Red Door. “The only thing stopping it is the Gibraltar town board, whose members passed an ordinance to protect special interests. That’s not just wrong, it is also unconstitutional. The Wisconsin Constitution clearly prohibits governments from picking winners and losers, which is why we’re putting the board officially on notice: either repeal this unjust law, or face a lawsuit.”

Chris Hadraba, one of White Cottage Red Door’s owners, spent years making delicious burgers at a restaurant in Florida. He and his co-owners, all of whom have deep Wisconsin roots, thought they should use these talents to supplement their business’s income during the warm months of the year. They purchased a truck, earned a state mobile-restaurant license and county zoning permit, and then opened last summer. Sadly, their first customer was Gibraltar’s town constable, who told Chris that the truck was illegal. But the constable was wrong—the truck had all the authorization it needed to operate on its owners’ property.

When the town board found that out, it tried to convince Door County’s zoning department to revoke the truck’s permit. The county refused, so the town board passed a new ordinance banning all sales on wheels. Fines for violating the new ordinance can reach $500 per day.

The ordinance has one purpose: economic protectionism. The board’s chairman—who voted for the ordinance—owns a brick-and-mortar restaurant just two miles down the road. Also, the former board member who pushed the county to revoke White Cottage Red Door’s zoning permit last fall works at another restaurant in town.

“We were shocked to hear that our modest food truck set up in our own parking lot was illegal,” said Chris. “This was an investment we made carefully with attention to the rules. Those rules changed when the town board saw our truck as a threat to their businesses. All we want is to be able to compete.”

The town board’s ban is unconstitutional. Wisconsin’s Constitution protects the rights of entrepreneurs to earn an honest living free from arbitrary restrictions, especially on their own property.

Gibraltar’s food truck ban also violates state law. Wisconsin’s courts have held that municipalities cannot drown state-approved businesses in red tape. The town board can’t ban what the state has expressly allowed, particularly to protect the interests of its own members.

Gibraltar now has 120 days to respond to White Cottage Red Door’s formal demand that the town scrap its unconstitutional and illegal vending ban. If the town board insists on maintaining the ban, White Cottage Red Door and the Institute for Justice will file a lawsuit.

“Food trucks offer entrepreneurs an innovative way to satisfy their customers, but too often public officials stifle that innovation with bans and anti-competitive regulations,” said Robert Frommer, a senior attorney with the Institute for Justice. “If this attempt to use public power to prevent competition stands, it could threaten businesses in more than just Gibraltar. We will work to vindicate White Cottage Red Door’s constitutional right to operate their food truck, even if that means taking the matter to court.”

Through its National Street Vending Initiative, IJ protects vendors’ rights coast to coast. For example, IJ lawsuits in San Antonio, El Paso, and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ continues to litigate against unconstitutional vending barriers in Baltimore and Chicago.