Wednesday, April 16, 2014
By BERT GALL and KATIE McLAY
When Portland recently played host to the final two competitors on Food Network's "Great Food Truck Race," it had to issue a special, temporary license to allow Seoul Sausage and Nonni's Kitchenette to sell their delicious cuisine in the city. This is because a city ordinance currently forbids food trucks and other mobilized vendors from operating within Portland.
But it looks like that will have changed by the time Portland's episode of the race airs later this fall. This evening, the City Council will most likely approve a new regulation that will finally open the city up to food trucks.This is good news, but not good enough -- far from it.
That's because the ordinance's practical effect will be to make it extremely difficult for food truck entrepreneurs to open their trucks in Portland and stay in business here. Under the ordinance, food trucks will be able to operate only in very limited areas in the city. In addition, they will have to stay 65 feet (on peninsula) and 200 feet (off peninsula) from any brick-and-mortar restaurant.
Taken together, these restrictions mean that finding a parking spot in popular commercial areas -- that is, where customers are most likely to be found -- will be a dicey proposition.
Some food truck owners may be able to eke out a living under these circumstances, but the odds will be strongly against Portland's having a thriving and sustainable food truck industry.
Indeed, as Councilor David Marshall recently noted, "I don't expect to see a huge number of (food trucks). It's going to be a challenging business to operate."
So Portland isn't exactly rolling out the red carpet for food trucks. Instead, it appears that the new regulation is designed to "protect" restaurants from "too much" competition from food trucks.
Why? The theory seems to be that food trucks have an unfair advantage over restaurants because of their mobility, and thus that restaurants need the government to step in to negate that advantage.
This theory is just that -- a theory, and a foolish one to boot. If a restaurant needs protection from a food truck, then there is probably something wrong with the restaurant.
After all, restaurants have a host of advantages over food trucks: bigger kitchens (which means bigger menus), more storage for inventory, a dining area, protection from the elements and the business good will that comes from having a stable location.
All these advantages mean that restaurants don't need the government's protection from food trucks. Look, for example, at Los Angeles, Austin, Texas, and Washington, D.C., which give food trucks much greater freedom of movement than what will be allowed under Portland's new ordinance.
Food trucks have not caused the demise of those cities' restaurant scenes. In fact, the competition provided by the trucks has made those scenes better by forcing restaurants to improve the quality of their offerings.
At the same time, successful food truck owners are earning enough money to start their own restaurants while many successful restaurants are now launching their own food trucks.
Even if we were to suspend reality and assume that restaurants need protection from food trucks, it would still be true that economic protectionism is not a legitimate governmental interest.
Indeed, several federal courts have struck down protectionist laws that unlawfully impinge upon individuals' economic liberty -- the basic right of every American to earn an honest living free from arbitrary government interference, protected by the 14th Amendment to the U.S. Constitution.
Portland's City Council should respect this right by scrubbing its new food truck law of protectionist locational restrictions. If not, Portland will remain an inhospitable market for food trucks. And the economic rewards that a thriving food-truck industry has brought to so many other cities will not be replicated in Portland.
In other words, in the race to enact good food truck laws, Portland will remain where it has been: last place.
Bert Gall is a senior attorney and Katie McLay is a law clerk at the Institute for Justice, a libertarian public interest law firm based in Arlington, Va.