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Should Evanston fight or switch, now that a lawsuit’s been filed challenging a city ordinance that limits food truck operators to owners of brick-and-mortar restaurants in town?

Food truck licenses in Evanston

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Donut guys challenge Evanston food truck law

Bill Smith is the editor and publisher of Evanston Now.

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24 Comments

  1. Another option should be…

    The City should re-write the ordinance to include a tax on food trucks.  I don't think it's fair for them to come to the city for an hour, make money and leave.  However, if the city adopted a rule allowing them to come into town make some money and come tax time, pay a little to the city, then I believe it's fair.

     

    1. Outlaw food trucks

      Perhaps we should just prohibit food trucks – which the City has the right to do –  giving the libertarians a pyrrhic victory.

      How about  requiring anyone selling prepared food in Evanston to have, for food safety reasons, working bathrooms and sinks that are available for both workers and customers?  

      1. Outlaw restaurants too

        Better yet we should outlaw all food preparation by all private restaurants too. That would be the fairest way to deal with this issue. Government can own and operate all food preperation operations much better anyways. We have too many choices and freedom as it is, and it would be much more efficient if the the City just told everyone in Evanston what the people can and cannot eat. After all, politicians know better than the rest of us. J/K

  2. Food Trucks another option

    How about a license for non-Evanston-based food trucks to come into Evanston?  This provides up front money and reduces follow up costs of chasing tx collection.  How did the non-Evanston-based food trucks get to come to the Brummel Park Food Truck Fest and Concert a few weeks ago?

  3. middle ground?

    How about a limited number that are for 60 or 90 or 120 days (or whatever makes sense) so that we have  some food trucks (and um, yeah they should all meet the health and safety guidelines), but we might want to limit it to not more than 5 or 6 at a time.  Maybe preference to Evanston-based food trucks?  I don't know but it seems like there are more options than all or nothing.

  4. Missing the point.

    I think some of you are missing the point of the lawsuit.  The lawsuit essentially contends that there cannot be different rules for food trucks that are considered "non-local" — the City likely cannot tax "non-local" trucks differently than "local" trucks or place different limitations on them.

    I put the local/non-local in quotes above, because what really makes one local and one not.  Once the trucks operate in Evanston they will be local.  And they will be collectiong local sales tax.

    This is the whole concept of equal protection — the city council cannot treat some parts of a group differently than the whole.  The city council can't protect the interests of some businesses over other identical businesses just because they have warmer and fuzzier feelings about those tied to brick-and-mortar restaurants.

    Wally really shot Evanston in the foot with his comments in the Tribune:

    http://www.chicagotribune.com/news/local/suburbs/evanston/ct-met-food-truck-lawsuit-20120808,0,4316195.story

    To vocally argue to protect certain businesses over others, as Wally did in the Tribune, only builds the case against Evanston and will help ensure the plaintiffs' victory.  He says Evanston wants "regulate on our own terms" — sorry, but a government body must also regulate under legal terms, not just want one concocts in their own head.

    1. Taxes

      The only thing I would say to that is, the city is collecting taxes on the "local" food trucks because of the brick and mortar stores.  They wouldn't be collecting anything from Beavers, and I don't think that's fair.  A small yearly tax would solve this in my opinion.

      The main problem with food trucks in Evanston isn't this situation anyway.  The problem is they can't set up shop downtown because they would be in such close proximity to the brick mortar restaurants.  I've never seen Hummingbird out at lunch.  I think I've seen a cupcake truck one time, and I live AND work in Evanston.  If it wasn't for the food truck festival and the Custer St. Fair, I wouldn't know that Evanston even had a food truck.  And honestly, how often would Beavers even drive all the way out here when they can set up shop on Madison and LsSalle and sell out in 10 minutes?

      1. But…

        I think Beavers would still be required to collect and remit sales taxes when they are in Evanston.  They would also be paying income taxes.

        And even if they would get more business at Madison and LaSalle, that is for the business to figure out.  Or if they are successful in one location maybe they would acquire another truck or two or seven.  Lastly, maybe the Loop is saturated with too much competition among restaurants and it might make sense for Beavers to break out of the clutter and come to Evanston (be a big fish in a small pond).

  5. The money doesn’t stay here

    This just feels like the days when folks were denied because of the color of their skin. 

    Come on, folks, is disparate treatment the answer?  Do our residents only shop in our town?  If the answer to this question is NO, there is no difference between shopping outside of our town and the food truck doing business in our town.  The bottom line, the money doesn't stay here.  That's life!

     

     

     

  6. good guys, bad lawsuit

    Entrepreneurship is great and those donuts look pretty tasty, but some of the remarks in this and the other post (with the video) don't hold water. The idea that "There is demand for my product so I get to sell wherever I want" doesn't hold much legal weight anywhere. If that principle held up, no municipal anti-solicitation ordinance would stand, all zoning laws regulating hours of operation or billboard placement would fall, and do-not-call lists would be unconstitutional.

    The streets are not a public market. They are primarily for transportation. The regulation of the streets is an historic and classic function of municipal government. There is no more right to pull into a parking space and start selling doughnuts than there is a right to pull over, open your trunk, and start hawking rugs, velvet Elvis paintings, or fireworks.

    The regulation of food businesses is likewise a classic governmental function, one in fact demanded by reformers in the wake of food poisinings, vermin infestation, subtandard sanitation, etc. So is the regulation of mobile vendors — this goes back to the patent medicine peddlers and all manner of hucksters who breezed into towns with wagons of sketchy wares, never to be seen again.

    Since the right impinged upon here is not one that triggers strict scrutiny — no, it's not like saying people of a certain race or origin can't sell here — the test is primarily whether there is a rational relationship between the law and the impositions and the purpose sought to be served, with courts giving a pretty loose reading of "rational." Requiring a brick-and-mortar establishment ensures a physical presence that can be inspected by the City on whose streets the vendor wants to sell, a certain quantum of capital commitment, and accountability because the City wouldn't have to chase down, out of town, some operator if they needed to enforce code.

    A rationale based on favoring local businesses is not as sound, but a city that could ban food trucks outright — which they unquestionably could — arguably has the power to spur local economic development by lifting the ban for local businesses while not opening the door to every outside operator. That way it's not a restrictive food truck code provision, it's an expansion of what you are permitted to do if you have a local restaurant license.

    Whether it's good policy or not is a different question, but purely from a legal standpoint, this should be an easy case for the City to defend.

    1. I must disagree.

      Jeff, I respect your opinions, and you are a lawyer (I am not) — but I think you missing the picture.  People aren't saying the free market trumps reasonable health regulations.  But it seems clear the STATED intent of the City is to protect the business interests of some food operators over others — not because of health concerns, but simply to limit competition — and I think that is something the City is going to have a hard time to defend in court.

      You make the argument that ensuring a physical presence in Evanston makes it easier to inspect their premises and makes it easier to locate them to enforce code.  Their are flaws with that argument.  First, the City does not appear to have stated that as the reason — again, much of their stated reason is to protect some businesses from competition.  Second, then why did they issue a temporary premit to Beavers for Dillo Day?  If inspecting a separate, food preparation site is necessary… why would they have allowed them to operate on Dillo Day and "endanger" so many Evanstonians?  Third, if the City needed businesses to be "local" in order to track them down… could Evanston then ban a restaurant on the south side of Howard St. from delivering into Evanton or a plumber from operating within Evanston even if their business is housed out of Skokie?

  7. Misguided ordinance

    One of the coolest things about Evanston is the staggering variety of dining options. There's no quesiton that we're a destination for folks north and south looking for tasty and interesting ways to eat out.

    The food truck movement is, among other things, about ease of entry into that dining market — about making it easier to do business. I think we all know ordinances like this are not about "protecting the public" — it's pretty well established that, properly regulated as food trucks are, they pose no sigificant increase in health risk over a brick/mortar establishment.

    But…talk about lower barriers to entry!  The beauty of the food truck movement is that an entreprenuer can get a culinary idea up and running, tested, and into the market for a fraction of the cost of a brick/mortar restaurant.

    But this ordinance makes that out to be a bad thing! As Wally said in the Tribune article, "we have to craft a balance…supporting local businesses but also not endangering their livelihood."

    Bad syntax aside, it's probably safe to say that by "their" Wally meant "existing local businesses." Voila: huge barrier-to-entry advantage of a promising new commercial avenue, neutralized — you want a food truck in Evanston? Open a permanent restaurant first.  Who benefits from this? Existing restaurateurs, and pretty much no one else.

    A brick/mortar restaurant serves the public in many specific ways. Food trucks serve us in other ways, the common ground pretty much limited to "prepared food."  Other than that, as Cy Tolliver said to Al Swearengen, "I don't see a real overlap here." 

    This ordinance is the city of Evanston administration, with no meaningful input from the citizens, protecting existing businesses from "competition" that doesn't really even exist. Not OK with me. Here's hoping clearer heads prevail, and it's a pity it had to come to a lawsuit to bring it to our attention.

  8. Fairness is the issue

    The statements that this ordinance is designed to protect or give special benefit to existing local business is nonsense and not the issue at all.  What is the issue isn't fair treatment of the truck owners, it's fair treatment to the existing business community.  You know, the business community that pays r.e. taxes to the community they do business in, the taxes that fund your schools and parks, support your local charities, etc.

    Let the trucks do business, outsiders or not, I'm sure nobody is afraid of them on a purely competitive basis. But it is only fair that they are required to pay at the same level that the existing local business people must pay in order to do business here. 

    To allow an outside company that pays their r.e. taxes to some other community to come in and do business here yet incur virtually none of the cost required of the local business owner is basically unfair to the point of ridiculous. 

    The ordinance may need to be tweaked, but the thinking behind it is sound.  It isn't anti competitive or any of that yammering.  The ordinance should do what govt. is supposed to do, and that is create a level playing field for every business that is fair and not give any business, ie food trucks from other communites, a completly unfair advantage over your local business community.

    1. Farmer’s Market/Craft Fairs

      So, based on that reasoning, you would oppose Farmer's Markets or Craft Fairs, right?

      1. Without fairness, yes

        Every craft fair I can think of here tends to be fund raisers benifiting local community organizations.  If they were not set up under that scenario then the seller of those crafts would not be allowed to set up a store on the sidewalk in front of another taxpaying business, nor should they ever be allowed.

        And yes, the farmers market has begun to grow similar issues.  i.e., there are now bakers present from Chicago who set up shop and sell baked goods,  There is a fundamental unfairness to that.  Just like the people who have suddenly appeared on the street selling flowers from a cart on the weekends, completely unfair to the many florist in town who are required to pay high property taxes.

        It's not a question of being against trucks, flower sellers or anything else.  It is a question of equal application of cost and regulations that are mandated from govt. Those cost and regulations should apply equally to everybody.  The flower seller, the bakers, the food trucks, all nice things, and all given unfair advantages at the expense of our local business community.  Really stupid.

        1. About fairness

          I disagree with the line of thinking about fairness. Applying this insular logic would mean that any non-Evanston business selling to someone in Evanston should be subject to the regulations and taxes of Evanston. So, buying from a business on the south side of Howard? What to do about that? What about buying from Amazon? They're taking business away from Evanston businesses. What to do about that? They're in Evanston, via the internet, competing side by side with brick and mortar businesses.

          Business is about competition, not fairness. If I can buy a better sandwich from a street vendor, for less money than I can from a bricks and mortar restaurant, I want that opportunity. It's incumbant on the restaurant owner to compete with the market.. Neither vendor should be protected by some slippery doctrine of "fairness."

          Certainly, any roving vendor should be required to obtain a license and be subjected to inspections. Requiring them to have a bricks and mortar establishment, however, is not rational. It's no more rational than Evanston's municipal gov't. stopping La Rosa's pizza delivery guy at the border between Skokie and Evanston.

          1. Theres a difference

            There is a complete difference in the scenario you provide which is a completely apple-to-orange comparison.

            It's YOU who goes to the south side of Howard, The store on the south side of Howard didn't come north and set up shop on the sidewalk.  Ditto for the pizza delivery, YOU called them, and they came.  La Rosa didn't come set up shop on the street corner of Evanston half a block from Dave's Italian Kitchen and start selling pizza priced with the huge advantage the truck owners demand to obtain.     

            Amazon is basically the same thing. You went online, you went to them, they didn't set up a physical shop on the street corner in front of a local business with the competitive advantage to undersell the local guy because they don't have to support the cost structure the local guy is forced by the city to support.

            You're right that business is about competition, and nobody is afraid of that, but business must be set up on an equal basis for all partipants.  Having someone come in and set up a physical shop on a street in front of a local business without having to even come close to the cost structure mandated upon the local guy by the city is patently unfair.

    2. How is it “unfair” if

      How is it "unfair" if everyone can own and operate a food truck. Would you ban ice cream trucks too? How about instead of you and politicians determining what is and isn't fair let the free people of evanston choose for themselves. 

      1. Free people

        "Free people" of Evanston.  Ok, no problem, let the food trucks operate without paying the freight that every other local business owner has to pay.  But at the same time stop charging the local business owner the city and school districts share of the property tax bill.  Also give a refund to them for all the years they have stepped up and paid those taxes.    "Free people" indeed.  LOL.   

      2. ‘Fairness’

        Isn't if funny how it is that whenever technology changes a marketplace, or there is inovation within an existing marketplace those already entrenched in the old paradigm feel violated?  There is no constitutional or intellectual argument that validates regulatory descrimination in what my truly be the 'oldest profession'!

        Bottom-line competition and an increase of choices BENEFITS the consumer, and TENDS to lower prices.

        Only the intellectually dishonest can be involved in trying use regulations to benefit established restaurants and to bar entry into the marketplace of mobil vendors.

  9. Why is it “unfair”?

    Why is it "unfair" that a mobile food truck wouldn't pay property taxes? They don't own or use property. The point of property taxes is to fund benefits that property owners enjoy: police and fire protection, local schools to which all property owners' children are entitled free admission, and so on.

    These guys would impose a much smaller footprint on the community than a brick-and-mortar. Complaining that they don't pay property taxes is like complaining that somebody with no income isn't paying income taxes. 

    Sure, they might incidentally need to use the police or fire department once in a blue moon — God forbid — but so might any passing motorist. Is an out-of-towner who gets into a nasty car accident in Evanston and needs the emergency services "cheating" the City because he doesn't pay property taxes? Of course not.

    Because property taxes are for property owners. There's already a tax specifically for business transactions. It's called a sales tax.

    1. Poor comparisons

      Sales tax has nothing to do with the conversation as it is not a business expense, FYI, that is a consumer expense only collected by business and then forwarded to the govt.  And an unfortunate accident has nothing to do with the conversation, it's quite a stretch to think that is a comparable example.

      If you believe that a business should be allowed to set up a physical shop in town and not pay real estate taxes then great, I will vote for you.  Just as soon as you make that application apply to every business that sets up a physical shop in Evanston. 

      Food trucks do use property, and they do pay taxes to their host community.  When a responsible business does trade in multiple locations, they pay r.e. taxes to multiple communites, they don't say, oh, I have a commissary kitchen and pay taxes over there, so now I demand to set up a very physical location here and solicit business here, but I demand to do so tax free because I paid taxes over there.    

      There is also a real difference between you calling a food truck to make a personal delivery to your home or cater an affair at your business and the food truck setting up a very physical shop location and opening their doors to solicit business while not footing a bill that is comprable to every other business in town. 

      Final bad comparison, if someone has no income, they pay no taxes, trucks have income, why should they not pay comprable taxes?

  10. Catering ?

    Would the city's logic then mean no Evanston caterer should be allowed to deliever or make available for pick-up in Evanston or Chicago or other suburbs ?   Likewise no catering into Evanston from other suburbs.

    I suspect there are a number of catering services that have all the food prepared in their [the caterers] home and do not pay extra property taxes as a business [or taxes at all].  This is probably in violation of a number of ordinances already.

  11. What other business is the city taxling ?

    Are they already collecting [exttra] property and sales tax for home offices of lawyers, accountants, tax preparers, in home bike repairs, in home mechanics, authors, baby sitters,… ?

    Seems fruitful ground for the city to collect all kinds of taxes and fees that make the food trucks pale in comparison.  Yes the city can probably find a multitude of ways to kill a lot of business, decrease income, cause mortgage failure, foreclosurers and personal [not to mention business] bankruptcy.  This will be a good way for the city to finally get rid of all business so citizens will have nothing to do other than go to city sponsored/owned art exhibits and theater—until they then can start charging.

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