Institute for Justice Warns Lexington: Proposed Vending Ordinance Violates U.S. Constitution

J. Justin Wilson
J. Justin Wilson · January 30, 2012

Lexington, K.Y.—Today, the Institute for Justice notified the Lexington-Fayette Urban County Council’s Itinerant Merchant Task Force that its proposed vending ordinance is not just wrong; it’s unconstitutional. The current proposal that would prohibit vendors from operating within 200 feet of a restaurant, limit vending on public property to a small space downtown and severely limit when vendors may be open violates their constitutional right to earn an honest living.

As the street food craze spreads across the country, officials have worked to regulate these innovative businesses. Cities like Los Angeles and Austin have welcomed vendors by writing simple regulations meant only to protect public health and safety. But other localities, including Lexington, are trying to pick winners and losers in the marketplace. Economic protectionism is not a valid use of government power, though, and the Task Force’s proposal violates vendors’ right to economic liberty as enshrined in the 14th Amendment of the U.S. Constitution.

The Institute for Justice’s letter—sent to all members of the Task Force—advises Lexington to “reject protectionist efforts and instead enact clear, simple and modern laws that focus exclusively on protecting the public’s health and safety.” Specifically, the Institute urges Lexington to let vendors operate on public property “with appropriate limitations that protect the public health and safety concerns of congestion, trash, and food safety”; reject “any proximity restriction based on the location of existing brick-and-mortar restaurants or other food truck competitors”; and to let vendors set their own business hours just like restaurants may.

“Food truck owners in Lexington want the same opportunity as other entrepreneurs to succeed in the free and open market serving our customers each day rather than spending our days and dollars in local government buildings defending our right to earn an honest living,” said Sean Tibbetts, owner of the Cluckin’ Burger truck and director of the Bluegrass Food Truck Association.

“It should come as no surprise that when cities adopt entrepreneur-friendly laws they also create economic opportunity and clear the way for entrepreneurs to create vibrant downtowns with thriving street food cultures,” noted Christina Walsh, IJ’s director of activism and coalitions. “That same economic vibrancy can be Lexington’s, if only they reject the unconstitutional proposal currently before the task force.”

IJ is a public interest law firm that works with vendors across the nation to vindicate their right to earn an honest living free from protectionist laws. Through its National Street Vending Initiative, the Institute is challenging laws in both the courts and at the grassroots that prohibit street vendors from competing in the marketplace. Visit to download Streets of Dreams: How Cities Can Create Economic Opportunity by Knocking Down Protectionist Barriers to Street Vending.

For more information or if you would like to join the Bluegrass Food Truck Association, please contact Sean Tibbetts at [email protected].