A judge on Monday awarded food truck operators and one property owner nominal damages totaling $12 and court costs, in Proctor v. City of Jacksonville, signaling a win for economic liberty claims even as the court declined to directly rule on the constitutionality of the now-repealed ordinances, the plaintiffs’ attorney said.
For several years, the Institute for Justice (IJ) has represented property owner Nicole Gonzalez and food truck operators Tony Proctor and Octavius “Ray” Raymond challenging Jacksonville’s restrictions on their operations. The city recently repealed three of the most burdensome provisions, rules IJ argued were unconstitutional, anticompetitive, and effectively banned food trucks from most commercially zoned areas.
“What the court did, which was to award us all of our relief even after repeal, strongly suggests that North Carolina courts take economic freedom seriously and that this kind of protectionism will not be tolerated,” said Institute for Justice attorney Robert Fellner on Monday afternoon after court.
The Jacksonville Planning Advisory Board voted earlier this month to remove the most onerous restrictions in its food truck ordinance, and the Jacksonville City Council followed by unanimously repealing the rules on March 17.
“The reason we were pursuing this is that our plaintiffs were entitled to recognition from the courts that what happened to them was wrong and unconstitutional,” said Fellner. “More broadly, we were pursuing that declaration and recognition that what the city did was unconstitutional to make sure the city couldn’t do it again and to ensure other cities would be unable to engage in those kinds of rights violations.”
The suit survived after the North Carolina Court of Appeals reversed a trial court’s dismissal and allowed the constitutional claims to proceed.
Under the repealed rules:
• Food trucks could not operate within 250 feet of a restaurant, another food truck, or residential property — a restriction that had effectively made most of Jacksonville off‑limits.
• Food trucks were barred from using signage that many other businesses could use.
• Annual permit fees were $300 for residents and $500 for non‑residents, far above typical costs in nearby towns.
“Back in 2020 when we were first looking at food trucks they were a relatively new item,” said Nick Semandares, a member of the Planning Advisory Board during a March 9 meeting on the restrictions. “We didn’t know a whole lot about it and so we did some things that were protectionist, that maybe we don’t need to worry about now, because this seems to have taken care of it. Maybe it is time that we can lift the 250‑foot spacing requirement.”
Ryan King, Jacksonville’s planning director, told board members that the city’s rules didn’t align with other municipalities.
“For example the 250‑foot rule, I don’t recall seeing that in, say Wilmington or Raleigh, so that’s part of the reason why we’re talking about removing those items as well,” he said.
City attorney Lorna Welch warned the board that repeal may not stop legal action.
“I can’t even stand before you in good faith and tell you that this is going to solve the lawsuit,” said Welch. “I’m just telling you the lawsuit I think gave us an opportunity to say, they’re only challenging these specific areas, let’s look closely at those and see if they’re necessary or if really they’re not necessary.”
“The government is not allowed to restrict food trucks just because they might compete with their friends’ restaurants,” said Fellner in a press release. “These laws don’t just hurt food truck owners; they also restrict people’s freedom to choose where they can eat.”
The lawsuit alleges Jacksonville’s food truck rules violated multiple clauses of the North Carolina Constitution, including equal protection, economic liberty (“fruits of their own labor”), freedom of speech and the “law of the land.”