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Victory for Food Trucks in Door County

Decision calls Gibraltar’s ordinances "nothing less than illegal and unconstitutional economic protectionism"

Sturgeon Bay, Wis.—Yesterday afternoon, Judge Todd Ehlers of the Door County Circuit Court struck down the Town of Gibraltar’s vending ordinances as unconstitutional. When White Cottage Red Door owners Chris Hadraba, Jessica Hadraba, Lisa Howard, and Kevin Howard opened a food truck on their store’s parking lot in 2017, town officials launched a campaign to close them down. Ultimately, Gibraltar banned food trucks entirely in 2018. And once the Hadrabas and Howards teamed up with the Institute for Justice (IJ) to challenge the ban in state court, the town quickly tried to cover its tracks, replacing its total ban in 2019 with a new ordinance prohibiting food trucks from areas where brick-and-mortar restaurants operate. Even in the small pockets of town outside these areas, the new ordinance singled out food trucks for several burdens that do not apply to brick-and-mortar restaurants, like bans on outdoor seating and music.

Judge Ehlers ruled that both the 2018 and 2019 ordinances violated the Wisconsin Constitution because they “represented the use of public power to suppress competition from one entity for another special interest’s financial benefit.” According to Judge Ehlers, “both the 2018 Ordinance and the 2019 Ordinance were enacted by the Defendant’s Town Board in an effort to protect brick-and-mortar restaurants in the downtown Fish Creek area from competition from mobile food trucks or establishments.” As such, the ordinances were “nothing less than illegal and unconstitutional economic protectionism.”

That protectionism had a devastating effect on the Hadrabas and Howards’ business. It meant that White Cottage Red Door, a Door County shop known for “everything cherry,” could legally sell cherry pie indoors at its brick-and-mortar store, but not at its truck parked just a few feet away. Even though the truck met all of Wisconsin’s requirements for a safe restaurant—indeed, the state even classified the truck as a “mobile restaurant”—Gibraltar’s ordinances made it impossible for the two families to use their own property to grow their own business. This victory frees White Cottage Red Door to start vending once again, and more broadly protects Wisconsin entrepreneurs from actions by local officials who wish to use their public power to suppress competition for private gain.

“It is not the government’s job to pick winners and losers in the marketplace. Today’s decision striking down Gibraltar’s anticompetitive ordinances is a win for entrepreneurs, consumers and the Wisconsin Constitution,” said IJ Attorney Milad Emam.

“I’m so excited about this victory, which has been years in the making,” stated Chris Hadraba. “All I wanted to do was make burgers and barbecue to feed hungry customers. I’m so glad that the court’s decision to declare Gibraltar’s ordinances unconstitutional lets me do that again.”

“The Wisconsin Constitution forbids politicians from protecting certain preferred businesses from competition,” said Robert Frommer, IJ senior attorney and head of IJ’s National Street Vending Initiative. “But the Constitution is only as good as the judges willing to stand up for it. Judge Ehlers’s engaged opinion cut through the town’s arguments and sought the truth. His analysis is a model to follow for judges throughout Wisconsin.”

This case continues IJ’s National Street Vending Initiative, which 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 South Padre Island, Texas and Fort Pierce, Florida.

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