Andrew Wimer
Andrew Wimer · May 18, 2021

CLEARWATER, Fla.—Today, the owners of a Florida food truck filed suit in state court to protect their right to earn a living in the Tampa Bay area city they call home, Tarpon Springs. When Elijah Durham lost his job as a chef during the pandemic, he decided to become his own boss. He and his wife Ashley purchased a food truck and opened SOL Burger, intending to serve customers in their community with locally sourced ingredients. It was good timing, since Florida had just prohibited cities from having blanket bans against food trucks, like the one in Tarpon Springs.

But soon after SOL Burger opened and had been invited to serve the hungry customers of a local brewery, the city moved to ban food trucks from downtown Tarpon Springs. But the new ban had a big exception: local restaurants would be able to operate food trucks on their property. All other food trucks were relegated to a sliver of land far from potential customers. Elijah and Ashley had to take SOL Burger outside Tarpon Springs to make ends meet even though private property owners wanted them to operate in their parking lots.

Now, Elijah and Ashley are teaming up with the Institute for Justice (IJ) to sue Tarpon Springs over its anti-competitive food truck ordinance. Tarpon Springs’ ordinance may comply with Florida’s food truck law, but it violates the Florida Constitution, which prohibits using government power to benefit a favored economic group at the expense of others.

“Tarpon Springs embraces food trucks, but only if they are owned by local restaurants,” said Florida Office Managing Attorney Justin Pearson. “Not only is Tarpon Springs’ protectionism unconstitutional, but it misunderstands the relationship between food trucks and restaurants. Cities in other parts of the state have seen that food trucks increase foot traffic and help downtown areas, including restaurants, but Tarpon Springs’ government failed to do its homework.”

The Occupational Freedom and Opportunity Act of 2020 stopped Florida cities from banning food trucks or requiring local licenses. Local restaurant owners, frustrated that the state had opened the door to new competition, pressed the Tarpon Springs Board of Commissioners and Mayor to pass the new ordinance that would exclusively grant them the right to operate food trucks downtown.

Tarpon Springs may have acted to protect local restaurants, but there is plenty of evidence that it acted against the interest of the greater community. Small-scale culinary businesses like SOL Burger provide customers with more food options. They bring increased foot-traffic, benefitting all surrounding businesses. They improve the overall local economy, both for vendors themselves and restaurants too. Entrepreneurs who succeed with a food truck often use their profits to open brick-and-mortar restaurants.

“We live in Tarpon Springs, but the city made it nearly impossible for us to serve customers near our home just because we don’t own a restaurant,” said Elijah. “When I lost my job during the pandemic, buying a restaurant wasn’t an option. We just want to serve while parked on private property, not city streets. We’re fighting this protectionism not just for us, but for food truck owners across Florida.”

Tarpon Springs’ protectionist ordinance violates the Florida Constitution in that it denies Elijah and Ashley’s right to operate their truck for no other reason than to protect other businesses from competition. It also violates the constitution because it treats Elijah and Ashley’s food truck differently than restaurant-owned food trucks for only protectionist reasons.

“The government isn’t allowed to pick winners and losers in the marketplace. That choice is up to consumers,” said IJ Attorney Adam Griffin. “Tarpon Springs has said that only the politically connected insiders can have food trucks in downtown Tarpon Springs. That’s not just wrong; it’s unconstitutional. Elijah and Ashley are suing not just for themselves but to protect everyone’s rights.”

The Institute for Justice has successfully challenged restrictions on the economic liberty of food trucks to operate across the nation through its National Street Vending Initiative. IJ has successfully challenged unconstitutional food-truck restrictions in Fort Pierce, Florida; Carolina Beach, North Carolina; South Padre Island, Texas; and other cities across the U.S.