Illinois Supreme Court upholds controversial Chicago food truck restrictions

The Illinois Supreme Court sided with the city of Chicago following a yearslong court battle over some of the nation’s toughest food truck restrictions.

The Illinois Supreme Court unanimously ruled in favor of the city of Chicago in LMP Services, Inc. v. City of Chicago on May 23, upholding Chicago’s controversial “200-foot rule” and GPS tracking requirements. The high court said the regulations “balance the needs of both restaurants and food trucks” and did not violate the state constitution.

“Today’s ruling doesn’t protect public safety; instead, it protects brick-and-mortar restaurants from honest competition,” Institute for Justice senior attorney Robert Frommer, who was lead counsel on the case, said in a statement.

This decision deals another blow to struggling food truck vendors who’d been hoping for relief from some of the nation’s harshest food truck regulations.

In July 2012, Chicago passed rules prohibiting food trucks from doing business within 200 feet of a brick-and-mortar food establishment and requiring them to install a GPS device in their vehicle to track their location data.

The restrictions are so severe that just 3% of Chicago’s downtown Loop ­– one of the most lucrative and highly trafficked areas in the city – is legally operable for food trucks, according to a report by the U.S. Chamber of Commerce Foundation. It is not uncommon for food truck vendors in Chicago to suffer police crackdowns, and many lose business trying to navigate the city’s burdensome regulatory landscape. Between 2012 and 2017, Chicago’s food truck presence nearly halved.

Plaintiffs in the case lost in circuit court in December 2016, before suffering a subsequent loss in December 2017 at the Illinois Appellate Court. The Illinois Supreme Court agreed to hear the case in May 2018. On behalf of the Illinois Policy Institute, the Liberty Justice Center filed an amicus curiae brief in support of food truck entrepreneurs in August 2018.

Illinois Supreme Court Justice Anne Burke authored the unanimous opinion. Burke’s husband is powerful Chicago Ald. Ed Burke, 14th Ward, who currently faces felony attempted extortion charges.

Fighting for fairness

Laura Pekarik, who co-founded Cupcakes for Courage with her sister Kathryn, first brought this legal challenge against the city in 2012 with the help of the Institute for Justice. Cupcakes for Courage began as a small effort to raise money to help cover medical costs as Kathryn battled non-Hodgkin’s T-cell lymphoma. But the popularity of their baked goods inspired the sisters to grow their operation into a food truck enterprise, devoting a portion of their earnings to charities dedicated to cancer research.

But Chicago’s excessive regulations have made it increasingly difficult for food truck entrepreneurs such as Laura and Kathryn to do business in the city.

“Chicago admitted its 200-foot rule enriched restauranteurs by chasing away their mobile competitors. I hoped the Illinois Supreme Court would reject this kind of government picks the winners and losers approach, where success turns not on how good your product is, but on who you know at City Hall. Justice did not prevail today,” Laura said in a statement.

Other small businesses victimized by the city’s regulatory overreach include the Schnitzel King food truck, owned by Greg Burke and his fiancé, Kristin Casper. Greg originally joined the suit against the city along with Pekarik, but in 2014 Burke and Casper closed the Schnitzel King, citing Chicago’s “harsh food truck laws.”

200-foot rule

Section 7-38-115(f) of the Municipal Code of Chicago restricts food trucks from operating within 200 feet of a brick-and-mortar entrance to any “place where food and drink is prepared and served for the public for consumption on or off the premises.”

Ald. Tom Tunney, 44th Ward, a former chairman of the Illinois Restaurant Association – which lobbied for strict restrictions on food trucks – helped draft the ordinance. In the words of the IRA, these restrictions serve to protect brick-and-mortar restaurants. The Institute for Justice called it “pure protectionism” and argued it does not constitute a legitimate government interest.

The Illinois Supreme Court’s opinion sets a precedent that would allow local governments to treat businesses differently based on “increasing revenue for the City and improving stable economic growth,” which could open the door to further instances of protectionism in local economies.

Justice Anne Burke, who wrote the court’s unanimous opinion, found it in the interest of Chicago to encourage “the long-term stability and economic growth of its neighborhoods,” and that the controversial 200-foot rule accomplishes this by supporting “brick-and-mortar restaurants and, thus, neighborhood stability.”

This rationale enables local governments to set regulations that favor one class of businesses over another.

Privacy violations

The court also upheld Chicago’s law requiring food trucks to install a GPS tracking device and make their location data available to the city, which the Institute for Justice had argued is an unreasonable and warrantless search. The court held that food trucks “have no expectation of privacy” and that the requirement does not act as a search, and therefore does not violate the right to privacy of food truck operators.

Moreover, the justices held that even if the requirement constituted a search, they would still find the requirement reasonable because the city has an interest in accessing location data for purposes involving health emergencies or inspections.

The future for food trucks

While a U.S. Supreme Court appeal could follow, the Institute for Justice has not announced further plans. In the meantime, food truck entrepreneurs must continue to comply with the city’s highly strict regulations – and hope that Chicago politicians eventually find an appetite for reform.

“We are just trying to serve the community like the other businesses in the city of Chicago,” said Jeff Doornbos, owner of American Glory Food Truck, after hearing in May 2018 that the Illinois Supreme Court would hear the case. “At the same time, we are trying to make sure that we are abiding by all the rules and regulations put forth by the city.”

Chicago leaders should work to accommodate a variety of food options and entrepreneurs, instead of discriminating against one class of food service while giving special protections to another.

While the Illinois Supreme Court ruled in favor of Chicago’s established restaurant industry, city leaders would be wise to acknowledge that reforming its controversial food truck regulations would benefit aspiring small business owners, consumers and the local economy.