Over the past week, one fight over a food truck in Apalachicola heated up, while another one in Eastpointe simmered down.
On Tuesday morning, the county commission voted to rezone from residential to commercial a 3.23-acre parcel in Eastpoint adjacent to the Coastline RV Resort and Campground, to make way for a food truck owned by the Pesky Pelican Grille’s Jewell Still. (see sidebar)
All week, the city of Apalachicola has been in a standoff with Bacon Me Crazy, after the commissioners authorized going to circuit court to stop the food truck from operating out of the Apalachicola Ice Company at 252 Water Street, and fining owner Ashley Grieg for each day of operation since she was issued a first notice of violation on March 26.
No court action has yet been taken, but the issue has drawn the attention of the non-profit Washington-based Institute for Justice (IJ) a public interest law firm started with seed money from libertarian philanthropist Charles Koch.
On April 12, attorney Ara Bargill wrote a letter to Mayor Van Johnson, noting in the opening paragraph that “as part of its National Street Vending Initiative, IJ has filed lawsuits challenging laws that unconstitutionally restrict vendors’ right to economic liberty.
“In addition to litigation, IJ has published extensively on the benefits that street vendors provide, the barriers that too often stand in their way, and how cities can cultivate vibrant food-truck scenes,” Bargill wrote. “IJ also stands ready to work with food trucks and city officials across the country to reform local laws.”
In his letter, the attorney addresses the city’s decision to cite Bacon Me Crazy for not complying with C-1 zoning, and its plans to regulate mobile vendors that he says “would impose… arbitrary and unconstitutional restrictions on the ability of mobile food vendors to operate.”
Bargill contends the C-1 zoning “expressly authorizes ‘eating and drinking establishments,’” without limiting them to only those operating out of brick-and-mortar structures.
“The intent of (C-1) is to create a pedestrian friendly flow of commerce throughout the downtown area that encourages local residents and visitors to experience…. the district,” he wrote, citing the wording of the land use code. “It is almost difficult to conjure a business more likely to encourage a ‘pedestrian friendly flow of commerce’ than a mobile vendor that sells exclusively to people on foot. “
Bargill told the mayor the city had exceeded its regulatory power, and its actions against Bacon Me Crazy were legally void. He also wrote that the city’s proposed ordinance, to be considered at the May meeting “would impose unconstitutionally rigid impediments on the rights of property owners to use their private property, productively and harmlessly, as they see fit.”
The attorney said that by prohibiting any more than one food truck any property at a time, “this would unconstitutionally impair the ability of property owners to put underused land to a productive purpose.
“A one-truck-only policy is completely disconnected from public health and safety. Ultimately, such a policy would benefit nobody, except, perhaps restaurant owners,” Bargill wrote.
He said frustrated property owners could sue under Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act, which would compensate them, inclouding attorney’s fees, for violation of their property rights.
Bargill said the city’s proposed prohibition against operating “unimproved surfaces, vacant lots, and abandoned business locations” flies in the face of the prerogative of the property owner.
“To the extent that such a limitation would somehow be intended to somehow promote safety, it fails anyway. Studies have demonstrated that food trucks are a good way to stimulate inactive and underserved areas. Not only does it make sound economic sense, but it also helps make communities safer,” he wrote.
Bargill said the rule which would prohibit mobile vendors from operating at a single location more than three times per week, “makes it virtually impossible for a food trailer owner to vend profitably, as they would be limited to working less than half of the week.”
“It is unclear what legitimate—or even illegitimate—interest your city could possibly be seeking to accomplish by preventing legal businesses from operating during normal business hours,” he wrote. “It cannot be seriously suggested that a truck which is safe to operate three days out of the week transforms into a threat to public safety on day four.
“Mobile food vendors stimulate economic activity, generate pedestrian traffic, and draw residents and tourists to visit and linger in new and different parts of town,” Bargill wrote. “Food trucks also provide another, more pointed benefit. In storm-damaged areas, like Apalachicola, mobile vendors are often able to operate and provide services when brick-and-mortar establishments cannot. They are frequently the only food source for first responders and rescue workers. And they can act as economic drivers in areas, like Apalachicola, where the primary economic infrastructure is still recovering. “
City Manager said Tuesday the city is holding off going to court over Bacon Me Crazy, but he is adamant Grieg lacked a legal right to operate how she planned to ahead of the drafting and passage of mobile food vendor regulations.
"In the past some folks have showed up and done that and were told they’re not allowed to,” he said, noting that Grieg was asked to hold off opening until a method was devised to allow her to operate under existing zoning rules.
“She chose to do that,” Nalley said. “We have to enforce ordinances.”
He said the city has issued occupational licenses to three vendors - The Shaved Ice Place LLC, Andrea Duval Snowcones and Apalach Hot Dog Company LLC – and each required approval from the city’s planning and zoning board. Grieg has said her request for a license was pulled from consideration by City Planner Cindy Clark, and has alleged a deliberate bias on Clark’s part because she owns a commercial property down the block from the Apalachicola Ice Company.
“I think she’s doing exactly what we pay her to do. She’s doing her job,” said Nalley. “It’s unfortunate she’s being treated this way. Some folks haven’t taken the time to fully understand the facts of the case.”