There’s an interesting twist in the latest legal challenge against local food truck restrictions in North Carolina.
Plaintiff Nicole Gonzalez doesn’t own a food truck. Nor does she plan to get into the food truck business. Yet she still believes Jacksonville’s food truck rules violate her rights.
It’s much easier to explain the role of two other plaintiffs in the lawsuit filed Dec. 7. Tony Proctor and Octavius “Ray” Raymond both run food trucks. Both see the direct impacts of Jacksonville’s restrictions.
Their suit challenges three pieces of the city’s food truck regulations. First, Jacksonville bans food trucks on any property that sits within 250 feet of property with a brick-and-mortar restaurant or residential housing.
“Those two restrictions alone prohibit food trucks from operating in 96% of the city of Jacksonville,” said Bob Belden, an attorney with the Institute for Justice. He represents all three plaintiffs. “But there’s another proximity ban that prohibits food trucks from operating within 250 feet of each other. So the 96% figure is actually a conservative estimate.”
Within the fraction of Jacksonville’s city limits open to food trucks, potential operators face other barriers.
The second challenged regulation involves advertising. Food trucks are limited to one sign no taller or wider than five feet. The sign can have no external lights. It can’t sit atop the food truck. It must be displayed within 20 feet of the truck.
The third targeted rule hits food truck operators in the wallet. Jacksonville residents must pay an annual $300 permit fee to operate a food truck within the city. Out-of-towners have to pay $500 a year.
“That far exceeds their costs to regulate food trucks,” Belden told Carolina Journal. Most regulation actually comes from the county and state governments, not the city.
Proctor and Raymond argue that Jacksonville’s rules violate their rights under the N.C. Constitution. “Every North Carolina citizen has a constitutional right to earn an honest living in a common occupation free from protectionist regulation,” Belden said.
But Gonzalez raises a different objection to Jacksonville’s restrictions.
“This is a unique and cutting-edge case in the food truck area,” Belden explained. “We are asserting property-rights claims on behalf of our client.”
Nicole and her husband own Northwoods Urban Farm, a general store in Jacksonville. They would welcome food trucks in their parking lot. City restrictions prevent Gonzalez from allowing Proctor, Raymond, or any other food truck operator from conducting business on her property.
“Even though the store … used to be a restaurant, she’s not allowed to host a food truck here on her property because she’s within 250 feet of properties that have restaurants, and there’s residential property nearby,” Belden explained.
“Not only are we dealing with Tony and Ray’s economic liberties being stifled by the protectionism here, Nicole and her husband own this property,” he said. “It would be safe for them to have food trucks here, serving food to their neighbors.”
“It would be great not only for Nicole’s freedom, but for her business, to have a food truck here, bringing its customers, introducing them to her store, seeing what she has to offer,” Belden added.
Unlike most food truck lawsuits, this one adds property rights to more common claims involving economic liberty.
“Every property owner, like Nicole, has a right to use her property safely and reasonably, free from unreasonable regulation,” Belden said. “Nicole would like to host Tony or Ray. That would be beneficial to them and to the community.”
“We think that it violates the North Carolina Constitution for the city council to insert itself — with its regulations that are anti-food truck — in breaking up that voluntary arrangement that just makes people better off and doesn’t harm anyone.”
Article I, the state constitution’s Declaration of Rights, spells out North Carolinians’ “inalienable” rights, including “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
The word “property” is absent from the list, but Gonzalez’s property-rights claim marks an interesting addition to a case that also addresses the “fruits” of Proctor’s and Raymond’s labor.
It’s unclear how far the lawsuit will go. “The city coming to its senses and getting rid of these ridiculous restrictions would be the best thing for everybody,” Belden said. “It could happen right away, and it’s in their power to do that.”
“But North Carolina law on the right to earn an honest living, and the right to use your private property safely and reasonably, is very good for us,” he added. “We’re prepared to litigate all the way to the North Carolina Supreme Court to establish that precedent firmly.”
Those interested in boosting North Carolina’s economic freedom should watch closely.
Mitch Kokai is senior political analyst for the John Locke Foundation.