Owen Courreges: One large order of new food-truck laws, please

Posted by Robert Morris at 11:39 am business, city government, Featured, food and drink, opinion, politics

Jan 282013

(Cartoon by Owen Courreges)

Owen Courreges

The food truck debate in New Orleans is stirring once again. City Councilwoman Stacy Head has floated legislation to loosen regulations of food trucks, which at present are largely unchanged from the 1950’s. These existing regulations make food truck operations a nearly impossible proposition, with draconian restrictions on permits, operating times and locations.

Head wants to revamp and modernize these rules. Food trucks would be redefined under the city code to allow on-vehicle cooking. Instead of barring food trucks from operating 600 feet from restaurants, Head proposes reducing this restriction to 50 feet. Instead of only issuing 100 food truck permits, Head proposes increasing the number to 200. Food trucks would be able to park continuously for four hours and would be able to operate in previously banned parts of the Central Business District (CBD).

Of course, with the loosening of operating rules comes some responsibility. Thus, Head also proposes to increase permitting fees, create regulations for the suspension and revocation of permits, and pass rules requiring food trucks to clean up trash and keep clear from the front of residences. Essentially, food trucks would have a roadmap to safe and legal operation.

Who could oppose this? In true modern fashion, an on-line petition has already been started on Change.org. Local restaurateur Ruben Laws III started the petition last week in which he hysterically opined that “[r]estaurant owners in the CBD are about to have their sales invaded on by the food truck industry” even though they “have made great investments in their product and have worked hard to build a following of customers in their area.”

This is clearly the language of rent-seeking. No business owner is entitled to legal protection for their market share. Food trucks can’t “invade” anybody’s sales because those sales were never the anybody’s property to begin with. If the public responds to the availability of food trucks by abandoning certain restaurants, then perhaps those restaurants were not working as hard as they thought. Perhaps they’ve just been capitalizing off of laws to restrict their competition rather than serving the customer.

Frankly, I used to work in the CBD, and I never felt there was a surfeit of food options, and those that did exist often struck me as more complacent (re: poorer) than in other parts of the city. My impression was that an average restaurant in the CBD can limp along on lunch sales. Accordingly, the consumer would certainly benefit from more diverse food options that food trucks would provide.

As of writing this, Laws’ petition has 278 signatures. On the other hand, a previous petition by the New Orleans Food Truck Coalition for liberalizing food truck laws garnered over 1,300 signatures. This is obviously not a scientific sampling, but I wouldn’t be shocked if it reflected the actual breakdown of New Orleanians. Food trucks have been largely welcomed with open arms.

Instead of accepting pleas from restaurateurs spooked by any possible threat to their market share, we should embrace the roadmap to reform being pushed by Head. This is a culinary city and we should embrace the competition and increased options.

Some wise person once said: “If you love something, set it free. If it comes back it’s yours to keep. If it doesn’t, it was never meant to be.” This quote is usually invoked in reference to romantic relationships and not commercial transactions, but the same sentiment applies. The false perception of being trapped does not bring genuine fulfillment to anyone. CBD restaurants that truly value their customers should set them free and let them experience food trucks. If those customers don’t return, they were never really their customers to begin with.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

http://www.facebook.com/jim.mcarthur.10 Jim McArthur

Maybe we should try enforcing the existing regulations instead of watering them down?
- http://twitter.com/Owen_Courreges Owen Courrèges
  
  Jim,
  
  Why should we enforce the existing regulations? Are those regulations reasonable or even vaguely related to any public interest?
  
  No, no they’re not. They were specifically designed to kill competition. They were the result of backroom deals to protect existing street vendors and brick-and-mortar restaurants, nothing more. It’s downright embarrassing that we even have these laws on the books.
  
  We’re also setting ourselves up for lawsuits if this continues. El Paso’s food truck ordinance was revamped three months after a lawsuit was filed, and a lawsuit was just filed in Chicago this past November. Protectionist laws are typically not well-regarded by the Courts. Do you really want to start enforcing these laws in earnest and see this wind up in federal court?
  - http://twitter.com/Owen_Courreges Owen Courrèges
    
    Jim,
    
    Oh, come on! The current “regulation” of food trucks is barely short of an outright ban and has absolutely no resemblance to laws that govern food quality and improper parking. There is nothing inherent about food trucks that makes double-parking or food contamination more likely. Furthermore, the laws that ban food trucks from the CBD or within 600 feet of restaurants are blatantly protectionist — there’s really no other vaguely reasonable explanation.
    
    The laws we already have are clearly protectionist and probably unconstitutional. Enforcing them would have no positive impact on anything save the market share of brick-and-mortar eateries.
    - http://www.facebook.com/jim.mcarthur.10 Jim McArthur
      
      Owen,
      Why did you eliminate my comments, but then address them? “There is nothing inherent about food trucks that makes double-parking or food contamination more likely.” More likely than what? Do a lot of “brick and mortar” restaurants engage in double-parking? Are you saying that it’s as easy for health and safety inspectors to keep proper tabs on a “restaurant” on wheels bent on outrunning them than it is on one that never moves? “Probably unconstitutional” : Owen, stop play-acting! We both know that food establisments, like liquor stores, gun stores, etc., are all classified by the courts as highly-regulated businesses and can all be regulated to the nth degree!
DE

I’m not hating on food trucks, but I might be pissed if I spent a ton of money every month on rent to serve lunch in the CBD just to be undercut by a transient food truck. The current eateries have made an investment in the area…shouldn’t that be recognized and respected?
- http://twitter.com/Owen_Courreges Owen Courrèges
  
  DE,
  
  I am perfectly comfortable wit forcing people to compete with new businesses when government regulations are loosened. If you built your business model around government regulations eliminating potential competition, and you feel “undercut” when those regulations are loosened, then you deserve to fail and I feel no pity whatsoever for you. I refuse to recognize or respect that as a valid complaint.
  
  The bottom line is that those people who aren’t interested in a sit-down meal and want more food options should certainly be able to buy from a food truck. There is absolutely no reason why customers shouldn’t have the option, or why a vendor shouldn’t be able to provide that service subject to reasonable regulations. The idea that customers and potential food truck vendors should be shut out to provide an artificial boost to brick-and-mortar businesses is just crass. It’s just the old, corrupt rent-seeking that has helped crush our local economy.
Zimpelton

I heartily support competition for business in general and food trucks in particular. If you’ve been to New York or Los Angeles you know what a blessing it is to have freshly-made and easily accessible options for eating, especially when you’re on the go. But let’s make sure it’s a fair match. Food trucks can make a ton of money, most of it in cash. First, make sure that the operators collect taxes and pay them. That’s good for the city. Second, the minimal overhead (no rent, no insurance, no bathrooms, no seating, no air-conditioning & heating, no garbage and oil collection fees, no exterminating, and bare-bones labor costs, among other savings) means that food truck operators can charge significantly less than bricks-and-mortar restaurants for their product, so one standing requirement needs to be that food trucks selling products of a substantially similar nature to a competing restaurant(s) be 600′ away from the restaurant(s). Finally, if you’ve ever had food trucks parked in front of your establishment you know that, in addition to the reduced visibility of your (non-food) establishment, they take up parking space, can cause disruptive crowds, often produce noxious fumes and a ceaseless rattle from their generators and a lot of take-away litter. Therefore, even though a food truck may be stationed on public property (i.e. the street) I believe a private citizen should maintain the right to force it to relocate away away from the front of his property.
- http://twitter.com/Owen_Courreges Owen Courrèges
  
  Zimpelton,
  
  “Food trucks can make a ton of money, most of it in cash. First, make sure that the operators collect taxes and pay them.”
  
  Granted, but this is no more true for food trucks than brick-and-mortar restaurants.
  
  “Second, the minimal overhead (no rent, no insurance, no bathrooms, no seating, no air-conditioning & heating, no garbage and oil collection fees, no exterminating, and bare-bones labor costs, among other savings) means that food truck operators can charge significantly less than bricks-and-mortar restaurants for their product, so one standing requirement needs to be that food trucks selling products of a substantially similar nature to a competing restaurant(s) be 600′ away from the restaurant(s).”
  
  What you’re arguing here is exactly what I’ve been decrying – protectionism for brick-and-mortar restaurants. The current law is really no different from a requirement that a RedBox not be placed within 600 of a Blockbuster Video. Simply because a business model competes with another and has less overhead does not entitle it to any protection whatsoever. I can understand not allowing food trucks to park extremely close to restaurants (blocking their entrances or otherwise interfering with their business) but keeping them 600 feet away is just protectionism and it’s wrong.
  
  In any event, you have to bear in mind that the reduced overhead comes at a cost to food trucks. They can’t offer sit-down service, alcoholic beverages or other amenities that people desire. However, if customers would prefer to pay less and forgo those amenities, they should be able to without special protections for restaurants, and if that means that sit-down restaurants lose market share, tough.
  
  “[E]ven though a food truck may be stationed on public property (i.e. the street) I believe a private citizen should maintain the right to force it to relocate away away from the front of his property.”
  
  Well, if a food truck is actually causing excessive noise, not cleaning up after itself, etc., that’s against the law can be dealt with separately. In any event, Head’s proposed ordinance addresses such externalities.
  
  On the other hand, having a rule that any adjacent property owner can simply order a food truck to leave is a terrible solution. The food truck might be causing no problems whatsoever but the property owner just wants the parking space, or is a crank just hates food trucks for no good reason. The solution is what Head is proposing, to have specific regulations, not to allow private citizens to order food trucks around on a whim.
  - Zimpelton
    
    Owen,
    
    Geez, I can’t wait for your convoluted defense of peddlers hawking food and drinks out of ice chests when the food truck operators begin to decry the competition. It’s folly to say that the market will determine what’s best in the end. I’m no expert on the matter of running restaurants, but I think it’s safe to say that the vast majority of restaurants in N.O. are standalone mom-n-pop businesses that employ a half-dozen and more mostly lower-skilled folks from the vicinity. For sure they have a solid stake in the immediate community. Food trucks, in stark contrast, go wherever the richest feeding grounds are, all at the whim of an operator or two. One place dries up, they move to another. Don’t doubt for a second that the main motivation for starting a food truck over a bricks-and-mortar restaurant is that the pecuniary interests are more swiftly realized with the former. Nothing inherently wrong with that, but who do you want on your block? Someone like my neighborhood po-boy shop or guys like Mr. Taceaux Loceaux below, who hints of dire legal consequences with threats of food truck inundation and dirt on our city’s name if we don’t do things his way?
    
    Yeah, the po-boy shop ain’t nothing to write home about, and I wish they’d up their game a bit, but do you honestly believe that a food truck parked 10′ away from their front door that charges $2.50 a roast beef po-boy versus their $5 is going to make them improve their food? Honestly now. Restaurants’ costs are just too high to make it against a food truck serving the same food with a fraction of their overhead. And if it turns into a price war then the shop would be out of business pretty fast. Then I’d sure miss their mediocre po-boys, especially when the food truck that usurped them ever doesn’t show up. I’d miss the owner and his people because they punch the clock rain-or-shine every blessed workday. I’d miss how when they’re closed at night I feel safer as I’m walking home because they always keep a light on. If the food truck sold sushi instead of po-boys then more power to ‘em, I’d appreciate the variety, but having them compete tete-a-tete with their huge pricing advantage for the exact same customers is singling out an invested small business for failure.
    
    Regarding the right to have a food truck relocate away from the front of private property, why should my business be forced to suffer because of an obstruction that wasn’t on the map when I took the place? If my front entrance and display windows are blocked by a large box-truck and the ensuing crowds then that has a direct impact on my ability to run a business.
    
    I hope I don’t sound like a naysayer because in general I appreciate food trucks, but there has to be adequate “protection” as you put it (“leveling of the playing field” as I put it) for those who are already deeply invested in a location.
    - http://twitter.com/Owen_Courreges Owen Courrèges
      
      Zimpleton,
      
      “Geez, I can’t wait for your convoluted defense of peddlers hawking food and drinks out of ice chests when the food truck operators begin to decry the competition.”
      
      Well, they’d be subject to the same “mobile vendor” regulations that apply to food trucks, so I think they’d be in the same boat.
      
      “[Restaurants] have a solid stake in the immediate community. Food trucks, in stark contrast, go wherever the richest feeding grounds are.”
      
      Well, yeah, and that’s why you want to regulate food trucks to make sure they don’t cause a nuisance and respect the areas they operate in. In any event, I would rather have a food truck set up on my block for 4 hours or less at a time than have a restaurant nearby that has a cavalcade of delivery vans coming through and patrons taking up local street parking. There are pluses and minuses to both, and I don’t want to hinder anybody or favor a particular business model. Restaurants should be free to operate, but they should have to compete like everyone else.
      
      “[W]ho do you want on your block? Someone like my neighborhood po-boy shop or guys like Mr. Taceaux Loceaux below, who hints of dire legal consequences with threats of food truck inundation and dirt on our city’s name if we don’t do things his way?”
      
      Look, protectionism is illegal and there have been successful lawsuits against overly onerous food truck regulations. Nobody’s making threats; what they’re saying is that existing laws are arguably unconstitutional, and if the city doesn’t come up with a reasonable regulatory scheme that allows food trucks to operate, this issue will likely wind up in the courts. I brought this up in the comments even before Taceaux Loceaux did because it’s true (as a lawyer I analyze legal risk for a living). Pointing out the risk of litigation is not a “threat.”
      
      And in any case, I’d rather have a good food truck set up on my block than a lousy po-boy shop. Perhaps if your po-boy shop had to compete more, it would either “up its game” or simply fail and make way for somebody who can make a better sandwich (perhaps a former food truck operator).
      
      “Restaurants’ costs are just too high to make it against a food truck serving the same food with a fraction of their overhead.”
      
      Again, food trucks can’t offer the amenities of a sit down restaurant. You aren’t waited on, there isn’t seating, there isn’t alcohol – you basically have to stand and eat or go somewhere else. It’s not as though food trucks are going to take over prepared food distribution because a truck is cheaper than brick-and-mortar. Other cities have lots of food trucks and their restaurants seem to make out ok. Business is supposed to be about responding to competition, not shutting out different business models (i.e., rent-seeking). On the other hand, places that serve mediocre food and depend on zoning or inertia to make them the only game around should feel threatened. I have no problem with that.
      
      “If my front entrance and display windows are blocked by a large box-truck and the ensuing crowds then that has a direct impact on my ability to run a business.”
      
      This is a reason to limit the time a food truck can stay in a single location, but not a reason to give everyone an absolute right to tell them to leave for whatever reason. You could just as easily have your windows blocked by a delivery truck, a repair truck, or just a huge personal vehicle. As long as the food truck can’t stay there for an excessive period, I don’t see how your interests aren’t protected. In any case, I don’t see why your perceived interference with your business should lead to a rule that would make it effectively impossible for somebody else to operate theirs.
Michelle Sandborne

makes sense near tulane stadium… hungry fans. They can park on Claiborne, Willow, Calhoun, and both sides of Audobon
http://www.facebook.com/alex.delcastillo Alex del Castillo

Alex from Taceaux Loceaux here. The libertarian in me is pretty much in agreement with the above. The businessman/neighbor in me really only wants to set up where we are wanted. So in the CBD I’ve no interest in poaching folks off Mother’s or Cochon Butcher’s lines. I plan on parking near Tulane Med Center or City Hall where lunch breaks are short and options are few.
So we joined and tried to work with the Louisiana Restaurant Association to find a solution stakeholders could live with. They chose to spread untruths about trucks and present us health and economic threats, sending a call for action letter to all members except mobile vendors.
This will not end well for them. If the pilot program is quashed by their action then The Institute For Justice, a group of pipe hitting lawyers who love suing cities will be all over this. The precedent is that such protectionist laws that do more than regulate order and public safety are unconstitutional. They have won case after case about this all over the country. There will be bad publicity for the city and the restaurants who self identify as needing legal protection to survive. I am willing to concede a reasonable distance from open restaurants and certain areas off limits to avoid all that. If The I4J sues, trucks will be able to park wherever they want, as long as they follow parking laws.