Long Beach is in the process of rewriting its rules for food trucks, and a national nonprofit law firm warned Monday that the steps the city appears to be taking to protect brick-and-mortar restaurants from competition could be unconstitutional.
The Institute for Justice sent a letter to city officials Monday warning that the direction given by the City Council in August to “strike a balance” between physical restaurants and food trucks in the city could be seen as “protectionism,” which the firm said has been upheld in federal courts as unconstitutional.
Under the city’s current ordinance, food trucks are only allowed to operate in construction zones. The city is working to modernize its local laws to align with state laws, like allowing them to operate within 200 feet of a restroom they have access to. The first phase could also include requiring trucks operating in the city to obtain a city health permit.
However, local restaurant owners have complained that food trucks are stealing business from them, and the council indicated it would support an ordinance that balanced the interests of permanent eateries and those on wheels. A consultant report prepared for the city suggested establishing special zones where food trucks could operate.
The council is not expected to vote on the new ordinance until October 2023.
Justin Pearson, a senior attorney for the institute, said Monday that the council’s comments during the Aug. 23 meeting could undermine any kind of ban that the city might put in place in the forthcoming ordinance, noting that ordinances can’t be used as a pretext for protectionism.
“The City Council members didn’t even try to hide the fact that they were doing the bidding of restaurant owners,” Pearson said. “I’ve won cases using less evidence than what the Long Beach City Council has already provided during that meeting.”
Pearson was careful to say that the letter did not indicate a threat of a suit, but that the group would be keeping track of the process. Pearson said the issues discussed by the council would violate state and federal laws.
During the Aug. 23 City Council meeting, several council members remarked that they would like to see the new law reflect a compromise between food trucks and physical restaurants, potentially with a special zone being established for food trucks to operate to better allow city health inspectors to enforce regulations.
Councilmember Mary Zendejas said that the city had “loved on” food trucks for a long time but “we also have to take into consideration our brick-and-mortar businesses that are around.”
Councilmember Suzie Price said that some businesses have to pay special fees if they’re located in a business improvement district, which can be very expensive and frustrating if “not everyone is operating under the same limitations.”
Councilmember Rex Richardson acknowledged that food trucks are some people’s dreams and they’ve invested a lot into them, but added that the city should acknowledge they are “in many ways, a disruption to existing businesses.”
Cities are allowed to place restrictions on food truck operations if they pose a threat to public safety or health. In Long Beach, food trucks are already not allowed to operate in areas that have been designated as parking impacted.
A draft of the ordinance isn’t expected to be before the council until April, with a potential adoption date sometime in September or October, according to the city.
City Attorney Charlie Parkin said he couldn’t comment on the letter sent by Institute for Justice because it hadn’t been forwarded to his office yet. Parkin said that the city won’t favor one business over another.
“We’re not going to say we like Gladstone’s over a food truck and write an ordinance that would reflect that,” Parkin said.
The institute has won cases in cities like San Antonio and Louisville, which both sought to create buffers that forbid food trucks from operating within a specified distance from a physical restaurant. It also sent a similar letter to the city of Denver, which partially lifted its ban on food trucks operating in its lower downtown area in late August.
Pearson said his firm became aware of the Long Beach ordinance because individual food truck operators had contacted them about being mistreated by the city during the process.
He said that he’d like to work with the city to write a better ordinance. The institute has model legislation for both local and state governments that it advertises on its website that it says streamlines the process for operators to gain compliance without the burden of multiple applications and fees.
Pearson said food trucks serve a vital role in cities and can help attract people to business corridors and cities, something that cities like Long Beach spend lots of money trying to do.
“Food trucks will do that for free,” Pearson said. “If you let them.”
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