Judge Orders Fort Pierce to Stop Enforcing Unconstitutional Food Truck Ban

Institute for Justice · February 22, 2019

Today, a Florida circuit court ruled that Fort Pierce cannot enforce its unconstitutional ban on food trucks operating within 500 feet of another establishment that sells food. Food truck owners Benny Diaz and Brian Peffer filed a lawsuit against the city for its food truck law with the Institute for Justice (IJ) for violating their right to earn an honest living free from unreasonable government interference, a right protected by the Florida Constitution. The preliminary injunction issued today means that they and other food truck owners can sell food truck food as their lawsuit against the city continues.

“Today, the court ordered Fort Pierce to stop enforcing its unconstitutional food truck ban,” IJ Florida Office Managing Attorney Justin Pearson said. “We’re thrilled for our clients, and for the people of Fort Pierce who will now have more exciting food choices.”

Fort Pierce’s law was created in 2014 for the sole purpose of protecting restaurant owners, a fact then-Commissioner Edward Becht admitted. Allowing food trucks to compete directly with restaurants for business, he said, would “hurt the brick-and-mortar businesses.” Thus began one of the most stringent food truck proximity bans in the country, making it almost impossible for food truck owners to do business. Today, they are celebrating.

“I’ve been waiting a long time to sell my tacos in Fort Pierce. I can’t wait to bring Taco Trap to the city,” Taco Trap food truck owner Benny Diaz said.

Creative Chef on Wheels owner Brian Peffer echoed Diaz’s sentiments, saying, “People have been inviting me to Fort Pierce for a while. Now, I can finally do business in the city.”

In today’s order by Circuit Judge Lawrence Mirman, the court said: “The court agrees with Plaintiffs that Fort Pierce already had ordinances addressing legitimate concerns, and the 500-foot Ban was specifically drafted for only one purpose: to favor one type of commerce over another; to prevent competition.”

“As a matter of law, protectionism, by itself, is not a valid exercise of a police power,” the order continued.

This led, Dane Stuhlsatz, a constitutional law fellow at IJ who is also an attorney on the case, to call today, “A good day for Fort Pierce and the Florida Constitution.” Stuhlsatz continued, “Government does not have the power to pick winners and losers in the marketplace. That choice belongs to customers.”

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. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wisconsin.