Sturgeon Bay, Wis.—The owners of White Cottage Red Door, a Door County shop known for “everything cherry,” filed a constitutional challenge to the town of Gibraltar’s food-truck ban. When the small business opened a food truck in its parking lot in the summer of 2017, the Town of Gibraltar’s board, chaired by a local brick-and-mortar restaurant owner, promptly banned all businesses on wheels. After formally warning the town board earlier this year that its ban is unconstitutional and illegal, White Cottage Red Door filed suit in Door County Circuit Court.
“White Cottage Red Door just wants to sell burgers and barbecue on its own property,” said Milad Emam, an attorney with the Institute for Justice (IJ), which represents White Cottage Red Door. “But the Gibraltar town board is stopping them to protect special interests from competition. That’s not just wrong, it is unconstitutional. The Wisconsin Constitution prohibits governments from picking winners and losers.”
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 Chris’s talents to supplement their business’s income. They purchased a truck, earned a state mobile-restaurant license and county zoning permit and then opened in the summer of 2017. 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 ordinance can reach $500 per day. Since they could not risk these fines, White Cottage Red Door’s owners had no choice but to sell their food truck over the summer.
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, a former board member who pushed the county to revoke White Cottage Red Door’s zoning permit works at another restaurant in town. And a third board member has publicly sympathized with restaurateurs’ protectionist impulses. After eating an Italian beef sandwich at a food truck in a neighboring town, he exclaimed that “it was out of this world” and that he understood how a “restaurant should be up in arms over” food trucks.
“All we wanted to do was offer residents and visitors another option for good food in Fish Creek,” said Chris. “And we carefully followed all of the state’s and county’s rules. When we do win our lawsuit, we will purchase another truck so that I can once again use my cooking talents to support my family.”
Gibraltar’s food-truck 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 cannot ban what the state has expressly allowed, particularly to protect the interests of its own members.
“Sadly, the Gibraltar town board is just one of many local governing bodies that see food truck entrepreneurs as a threat instead of an opportunity,” said IJ Senior Attorney Robert Frommer. “If this small town board in Door County can use its power for naked protectionism, then entrepreneurs across the state are at risk. White Cottage Red Door is not just fighting for its own rights, but for those of other Wisconsinites who see opening a food truck as a viable path to prosperity.”
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.