Opinion

Give food trucks freedom to operate

San Antonio food truck operators should not be forced to ask competitors for permission to be in business. San Antonio food truck operators should not be forced to ask competitors for permission to be in business. Photo: BOB OWEN /San Antonio Express-News Photo: BOB OWEN /San Antonio Express-News Image 1 of / 1 Caption Close Give food trucks freedom to operate 1 / 1 Back to Gallery

Earlier this year, government agents showed up at Rafael Lopez’s business unannounced. They told him that he had to shut down immediately, or face up to $2,000 in fines per day. He was devastated — he’d sunk a good chunk of his savings into opening El Bandera Jalisco, a food truck that he operated on private property on Broadway.

When he asked the agents why, they explained that he was operating down the street from a restaurant and that San Antonio prohibits food trucks from operating within 300 feet of a brick-and-mortar restaurant. They told Rafael that his only chance at reopening his food truck was to get permission from the restaurant owner. A few days later, Rafael walked over and asked for permission, the owner refused, and El Bandera Jalisco was forced to close for good.

For over a decade, San Antonio has shut down food trucks such as El Bandera Jalisco for operating within 300 feet of a restaurant or other business that serves food, such as a grocery or convenience store. The law applies even if food trucks operate on private property. These 300-foot “no-vending” zones serve only one purpose: to protect San Antonio’s nearly 5,000 restaurants from competition.

Unsurprisingly, this shortsighted protectionist law has made it very difficult for entrepreneurs like Rafael and many others to open and operate food trucks in San Antonio. Austin, on the other hand, has a vibrant food-truck community. Indeed, there are three times as many food trucks per capita roaming the streets of Austin as there are in San Antonio.

No one should need a competitor’s permission to run a business. The government should not use its power to pick winners and losers in the marketplace. And in Texas, this kind of protectionist racket is unconstitutional. In a landmark ruling in June, the Texas Supreme Court made it clear that economic liberty — the right to earn an honest living free from unreasonable government interference — is a vigorously protected right under the Texas Constitution.

Under Patel vs. Texas Department of Licensing and Regulation, government regulators may not protect one type of business to the detriment of another; pure economic protectionism is not a legitimate use of government power. But that is exactly what San Antonio is doing to Rafael Lopez and every other food truck entrepreneur in the city.

Smart cities, from Austin all the way to El Paso, have recognized that food trucks play an important role in developing a lively and inviting local business climate. According to Upwardly Mobile, a new report released this week by the Institute for Justice, food trucks are much more than a pit stop for a tasty taco; they are also a vital economic engine. Vending gives many thousands of Americans an opportunity to support themselves, their families and their communities. In fact, 39 percent of vendors in large cities like San Antonio are also employers.

The city of San Antonio uses its 300-foot rule to punish food truck entrepreneurs for choosing a different business model than their brick-and-mortar competitors. If Rafael used the property he leases to operate a restaurant, he would be in business; but because he chooses to operate his El Bandera Jalisco food truck on that property instead, the city of San Antonio has put him out of business.

The Alamo City may be home to the Shrine of Texas Liberty, but San Antonio’s treatment of food truck entrepreneurs represents a failure to embrace the economic liberty enshrined in the Texas Constitution. That is why I and four San Antonio food truck owners, including Rafael, are teaming up to challenge the constitutionality of San Antonio’s 300-foot rule under the Texas Constitution. It is people, not the government, who should get to pick winners and losers in the marketplace.

Arif Panju is an attorney at the Institute for Justice and lead counsel in Lopez vs. San Antonio.