[UPDATED]
For the past twenty-five years, mobile food trucks have been prohibited from operating in the downtown Asheville area (although, they are not prohibited from operating in other areas inside the city). The popularity and prudence of the mobile food truck operation nationwide during tough economic times has prompted the city to reconsider the wisdom of this ban. The City of Asheville is presently considering removing the ban and is drafting new regulations for governing the operation of mobile food trucks in the downtown area on private property. This task has been outsourced to the Downtown Commission which, in turn, has delegated the task to a subcommittee dedicated to this specific issue.
In the course of identifying issues and concerns and developing an initial set of regulatory guidelines, the subcommittee has defined some rules that seem to fit within the proper scope of government oversight and some that seem not to fit within that scope.
The new regulations, if adopted in their present form, would allow the operation of food trucks downtown under certain conditions. They must allow ample space for the ingress and egress of pedestrians, automobiles and emergency vehicles. That is right and proper. It ensures that food trucks do not interfere with the free movement of individuals, police cars, fire trucks and ambulances. This helps to protect the rights of others.
Some rules included in the draft regulation are simply redundant; such as compliance with health and safety laws, noise ordinances and permitting processes. These should be more properly included in a manual for vendors and not a new set of regulations. These types of rules apply to all businesses and do not need to be repeated in regulations only governing food trucks.
Other rules, in fact, the bulk of them, seem to be an attempt to control factors that do not serve the purpose of protecting individual rights, which is government's sole legitimate purpose. For example, there is a rule limiting hours of operation. No explanation is given. Some restaurants are open 24 hours a day or at least late into the night and early morning. Why this limitation on food trucks? If there is no street business at 4:30AM, then business-people will have the sense to determine that it is not profitable to operate at this hour. However, if it is indeed profitable, then by what justification does the city shut them down?
Another rule would restrict the distance of a food truck to a restaurant to no less than 200 feet. Again, no explanation is given. Some restaurants are located side-by-side. Why this proximity restriction on food trucks? If this is for the purpose of protecting restaurants from competition, then I would remind the regulators that it is not the government's proper role to protect businesses from competition, but rather to ensure that the rights of all parties are protected from violation. No business owner has the right to be protected from competition through the use of force.
A rule establishing a limit to the total number of food trucks is included in the draft regulation. The reason given is that this would protect downtown from “too many” vendors. How does a government agent determine what constitutes “too many” over against the consuming marketplace? In a free market, if there is greater supply than demand, that is, if the market is saturated, only then are there objectively “too many” food trucks. By what other criteria can someone conclude that there are either too many or too few food trucks other than the arbitrary opinion of the regulator? The same would apply to any desire on the part of the regulators to limit permits to locals or prohibit permits to chains. These are matters best decided by business-people and the consuming public. If consumers have a distaste for Taco Bell or McDonald's selling street food, they can voluntarily make their displeasure known by avoiding these vendors. If a vendor from another county finds it profitable to drive for miles and set up a food truck every day in downtown Asheville for happy customers, then who is the government functionary to tell them they are not welcome? And by what right do regulators limit my food choices? If I want to eat a falafel downtown, who, at present, stands in my way? Local government.
One rule states that the permitting of a vending site on private property should “take into consideration the availability of sufficient parking for the primary site user.” Once again, how is this the business of government? If the property owner has determined that a food truck operation does not substantially hamper the ability of his primary customers from accessing his business, that should be the property owner's decision.
There is another rule that would mandate food truck vendors only offer recyclable containers, cups and utensils to customers. While this may be a laudable gesture, there is no justification for forcing vendors to make it. Besides increasing the cost of doing business for the vendor and the customer, it is morally repugnant for government to impose a set of values as a requirement for operating. Again, propriety of this measure is best left to the consuming public. If customers value recyclable containers, then they can vote with their dollars. They can also use persuasion to convince others to their point of view rather than use the coercive force of government to do so. If they cannot persuade, then perhaps they have a weak case to make.
Another standard being established is called “no roaming.” Again, I find no legitimate reason for this standard. When asked at a recent presentation on this issue, Warren Hansen, the Street Food Czar of Madison, Wisconsin, stated that disallowing roaming makes it easier for inspectors to find the vendors, it establishes a “sense of order” and helps repeat customers find vendors in fixed locations. On the first point, why can't they pick up a phone? Inspectors should have a list of vendors and their contact numbers. Or why not a GPS tracking system? Inspectors could easily locate all vendors on their iPhones and map an inspection route to satisfy their convenience. Why burden the vendor to satisfy the inspector? On the second point, it is not the government's job to create senses of order. And by whose standard? This is never explained. Third, if a vendor finds it important to stay in one place for the benefit of repeat customers, then they will choose this option. If it is more profitable to roam, then they should be free to do so to their own maximum benefit.
The worst provision in the draft regulation is the explicit requirement that vendors purchase a specific type of technology to mitigate the noise that now comes from conventional gas-powered electric generators. The regulation, as of this writing, would only permit either plug-in power or generators that employ inverter technology. It's true that typical generators make lots of noise. And it's true that inverter generators are whisper-quiet. Thank goodness for innovative technology. But demanding that vendors make use of a prescribed technology to achieve the mitigation of a nuisance is wholly unreasonable. We don't know what technologies will be available next year or what creative solutions vendors can imagine. Inverter generators are so expensive that requiring them on mobile food trucks would be effectively prohibitive. Any regulations allowing food trucks downtown would be completely subverted under this provision, which would price poor entrepreneurs out of the market. For some, a mobile food truck operation is the entry point into the food delivery marketplace. Instead, the regulation should establish a reasonable set of noise standards and let the vendors determine the method of compliance. Some may buy the expensive equipment as the best solution. Others may opt, for example, to build a cheap wooden container lined with sound reduction materials in order to come into compliance with the spirit of the law; which is to mitigate noise.
The bottom line for me is this: When I see mobile food vendors, I see poor people making a living and pleasing the community. I see creative entrepreneurs risking their own capital and precious time fulfilling their dreams in a welcoming marketplace. Reasonable regulation geared toward protecting the public health and safety is the proper purview of local government. But regulation that is redundant, controlling, prescriptive and prohibitive does not serve the interest of protecting rights, but instead serves to violate them. I hope that the city can develop a set of regulations governing mobile food trucks downtown that consciously errs, if at all, on the side of economic freedom, job creation and the pursuit of happiness for all citizens.
The Mobile Food Vending Subcommittee will now submit its findings to the Downtown Commission, who will then submit their recommendations to the city for reviews, a public hearing and, finally, a vote by city council to become law. I wish the City of Asheville godspeed in lifting the ban on mobile food trucks in downtown Asheville.
**UPDATE**
The Mobile Food Truck Subcommittee has sent a revised version of their recommended regulatory language to the Downtown Commission and the commission has voted to approve with modification. The vote was 7-2. The modifications include extending hours of operation to 3:00am, striking the restaurant proximity clause, striking the 50-gallon trash can mandate, striking the inverter technology generator mandate and striking the recyclable container mandate.
