Food Truck Regulation

[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.

P&Z: Food Truck Regulation

** UPDATED **

Mobile Food Vending Proposed Ordinance Changes 7/8/11 Review

1. New definitions:

Mobile food site means an individual parcel where mobile food vending is permitted to occur on a permanent basis

Mobile food vending means commercial food service sales by a mobile food vendor on a parcel of land outside of right-of-way areas. Sites approved for permanent mobile food vending are classified as a mobile food site.

Mobile food vendor means an individual who owns and operates a vehicle (truck or trailer with a maximum of two axles that includes a mobile kitchen that supports the sale and/or preparation of food and non-alcoholic beverages which is licensed and approved to walk-up customers.  

2. Temporary uses (already exist in the UDO) - minor changes proposed here:

Temporary mobile food sales.  Temporary mobile food vendors, pushcarts or stands may be allowed in all non-residential districts outside of the downtown area Central Business District, corresponding to the Downtown Design Review Overlay District, provided that uses/structures for mobile food sales are compliant with the following standards.

1. Hours of operation.  Temporary food vendors and stands shall be allowed from 6:00 a.m. to 3:00 a.m. with specific hours of operation indicated on the temporary use permit. Locations within 200’ of a residential use will have reduced hours of 6:00 a.m. until midnight.

2. Proximity to public right-of-way. All sales shall be conducted at least ten feet from all public rights-of-way.

3. Health department approval. Any food service operation that sells, prepares or serves food must obtain an approved mobile food service permit from the Buncombe County Health Department and is subject to inspection.

4. Display of permit.  A copy of the valid, approved permit must be attached to the exterior of the truck or mobile kitchen, in clear view of all patrons.

3. Proposed wording amendment to make mobile vending a permanent use on a site. In order to establish this use the following regulations must be followed:

a.   Use Districts: Office, Office II, Office Business, Community Business I, Community Business II, Institutional, Highway Business, Regional Business, Central Business, River, Commercial Industrial, Light Industrial, Industrial, Urban Village, Neighborhood Corridor, Urban Place

b. Permitting: Permitting to establish mobile food vending as a permanent use will incorporate the following permits:

1. Permitting the mobile food site: Mobile food vending will only be allowed on parcels with an approved development permit with the actual number of vendors permitted dependent on site conditions and the ability to comply with spacing requirements outlined in section ‘c.’ below.

2. Permitting the mobile food vendor: A mobile food vendor is required to obtain a permit for each separately approved mobile food site where vending will occur, according to the following regulations and also meeting regulations outlined in ‘d.’ below:

a. A mobile food vendor is permitted to vend at more than a single site but each location must be approved by individual permit.  

b. The Mobile Food Vendor permits will be renewed annually along with requirements for the Buncombe County Health Department.

c. The number of permits issued to individual mobile food vendors for the downtown Central Business District will be limited to 10.  Vendors may vend from multiple locations subject to the ability to meet other requirements.

d. Mobile food vendor permits will run with the calendar year and existing vendors will have the option to renew.

e.    Mobile food vendor permits shall include the addresses and hours of operation for the business.  Hours may be changed with 48 hours notice to the Development Services Center.  

f. Permits from Buncombe County and the City of Asheville shall be visually displayed on the mobile kitchen.

g. Copies of other required permits will be submitted with the mobile food vendor permit application.

h.    Operating without a valid permit will be considered a criminal misdemeanor and enforceable as such.  Violations of the approved permit for the mobile food vendor shall be considered a violation of this chapter and subject to the enforcement and penalty provisions of article XVIII of this chapter

c. Site Improvements:  The permit to establish a mobile food site will require approval of a site plan illustrating the proposed placement of the mobile food vendor(s) and the following items:

1. Access into the site and parking for vendor patrons at the rate of one parking space per mobile food vendor (applicable only if off-street parking is required in the zoning district).

2. Landscaping- The site will be improved to meet the standard for street trees.  In addition the affected area of the site will provide a minimum eight-foot wide property line buffer* when directly adjacent to residentially zoned and used parcels.  This buffer should be planted to include a mix of evergreen and deciduous trees and shrubs to result in a vegetative screen that is 75% opaque year-round.  As an alternative, the buffer may be reduced by 50% with the installation of an opaque fence. Existing buildings that screen the impacts of the mobile food vendor(s) will be considered a substitute for the property line buffer or portions thereof.

3. Sidewalks: Sidewalks will be required along the frontage lines of the parcel if the road is designated on the City’s needed linkages sidewalk list.

4. Site maneuvering: Each mobile food vendor will need sufficient space for maneuvering onto the lot, for safe access by pedestrians, and for emergency response.

5. Setbacks: Setbacks for individual mobile food vendors will be ten feet from side and rear property lines and other parked vehicles (if any). There is not a required setback from the frontage line except that no portion of the mobile food vendor will be permitted to encroach into the right-of-way.

6. Other site features: Permitting for the mobile food site will take into consideration the ability for the primary site user to maintain compliance with minimum parking standards (if there is one) referencing the specific zoning district standards as described in the UDO.

7. Permanent electric power infrastructure is the preferred method for supplying power at the mobile food site.  If this is pursued, then the proper applicable permits must be obtained.

d. Other requirements for mobile food vendors:

1. No mobile food vendors will be permitted to vend in a public street, sidewalk or right-of-way.
2. All mobile food vendors are required to maintain permits issued by the Buncombe County Health Department and the City of Asheville will defer to Buncombe County for health and food safety regulations.
3. All mobile food vendors shall leave the mobile food site when they are not in operation.
4. Aside from festivals or special events that are permitted under separate event permits, the mobile food vendor will be required to maintain a list of the location(s) for operating the vending unit.
5. Mobile food vendors will be limited to the sale of food and non-alcoholic drinks.  The sale of other merchandise or services will not be permitted.
6. Mobile food vendors are encouraged to use recyclable and/ or compostable containers, cups and utensils.
7. Hours of operation: (a) Mobile food vendors will be limited to the hours of 6:00 a.m. until midnight if they are within 200 feet of a residential use (locations in the downtown Central Business District excluded); (b.) Mobile food vendors who are not located within 200 feet of a residential use or are located in the downtown Central Business District may not operate between the hours of 3:00 a.m. and 6:00 a.m.    
8. The mobile food vendor(s) will be required to remove trash and litter from the mobile food site each day and to maintain the cleanliness of the site during hours of operation.  The vendor must provide a minimum of one receptacle for use by patrons.
9. The mobile food site will be subject to the outdoor lighting and noise ordinance standards established by the City of Asheville.
10. Outside power for the mobile food vendors may be provided by electric power pedestals as a preferred method or by a generator(s) operating at 65 decibels*2 or  less and which are properly attached per manufacturer’s standards to the mobile food vehicle.  Mobile food vendors utilizing a generator may not operate closer than 100 feet to a residential use, unless the generator operates at less than 50 decibels in which case distance will not be restricted except by other setbacks.
11. Vendors may not bring tables and chairs to the mobile food site except that a single chair may be brought by the vendor for use by staff. In addition stand-alone tents, shade clothes, steps, etc. may not be brought to the site by vendors.
12. Mobile food vendors shall maintain 20 feet between other mobile food vendors based on fire code separation.  
13. Vendors will be subject to random inspections to ensure compliance with all applicable requirements.
14. Signage: Mobile food vendors may have signage on their vehicle, not to exceed 32 square feet total per vehicle including letters and/or logo advertising the business. Square footage may be divided between a maximum of two faces. No roof signs will be allowed.  A single attached menu board totaling 6 square feet is also allowed for each truck.  

Items considered but not included in the proposed ordinance:

• Should we (or can we) restrict permits to Buncombe County residents only? If not, should there be a higher fee for non-City or non-Buncombe County residents? Not recommended at this time
• Should there be a food truck review board of some type? Wait one year and see if there is a need.
• Should the temporary use applicability be extended to the CBD? Not recommended at this time because this other alternative is being proposed
• Who will be enforcing this during non-Planning Department hours? Same entity during the day? Staff is working to resolve enforcement questions and will be meeting with the Public Safety Committee
• Need/funding/justification for an economic impact study? There are not funds to conduct an economic impact study
• Are bathrooms required for employees or patrons? The building code does not require bathrooms for either
• For the downtown Central Business District, there may need to be a minimum amount of time vendors must operate to keep the permit ‘active’ since the total number of permits is proposed to be limited

Additional items of concern discussed by the Downtown Commission and included in their motion to approve:

• Enforcement of specific regulations in the ordinance and also enforcement for vendors operating without permits (addressed through ordinance amendments proposed by APD)
• There are questions about permit fees and whether fees would be enough to cover staff expenses for enforcement (fees for full cost recovery are not typical, particularly with zoning fees.  Need for additional fees may not be necessary with assistance from APD)
• The ordinance will need to be reviewed after a period of time to see how it is working; this period may be about 12 months or after a full operational season, or at any point in time if a public safety/welfare issue is identified

** UPDATE -- August 16, 2011 **

The regulation was reviewed by the Public Safety Committee. They were satisfied with the enforcement solutions and approved of the regulation with the addition that unpermitted vending will be considered a Class III criminal misdemeanor. Fines could amount to $500. Third violation could result in 3 months jail time.

Food Trucks = Competition

Suzy Salwa Phillips, Gypsy Queen Cuisine Lebanese Street Food Truck

Feels food trucks would be harmful to Asheville
Anne Fitzgerald Smith | Asheville Citizen-Times | June 8, 2011

The Asheville Independent Restaurant Association board of directors, in an AC-T article, said: ‎"Food trucks will threaten the livelihood of some of our already existing 200-plus restaurants"

There you have it. A full admission that the ban of food trucks is solely motivated by an interest in eliminating competition in local food delivery services. The writer seems to ignore that fact that restrictions on food trucks threaten the livelihood of the dozens of entrepreneurs who add value to our community. Who the hell is this writer to tell me what food choices I can have in my own city?

1. Food truck entrepreneurs have a right to earn a living in any way that does not harm others.

2. Asheville consumers have a right to make dining choices without the interference of special interests or government restrictions.

3. Ensuring safety is a proper function of government; however, political interference in the marketplace violates individual rights and mostly hurts poor people.

---

RELATED

On a roll
by Mackensy Lunsford in Vol. 17 / Iss. 14 on 10/26/2010
Food trucks want a piece of the Asheville restaurant pie

Small Bites
by Anonymous in Vol. 17 / Iss. 43 on 05/17/2011
Food trucks abound — and vegetarian food does too

Lebanese Street Food Truck
Suzy Salwa Phillips | Kickstarter.com
My vision is quite simple, I want to serve my Asheville community and folks that come and visit from out of town a true authentic experience of Lebanese street food served from a vintage step up van that would run on spent peanut oil from its fryers and powered by solar panels and biodiesel fuel.

The Cancer of Regulation
John Stossel | 6/8/2011
Politicians care about poor people. I know because they always say that. But then why do they make it so hard for the poor to escape poverty?

LTE: Food Trucks

Asheville Tribune Executive Editor David Morgan argues ("Downtown Asheville without restaurants?," 9/1/2011) against the operation of food trucks downtown because they might provide some competition to restaurants and this, in turn, he speculates, would lead to a ghost town.

He first states that it is the government's role to "make the rules for free market competition reasonably equal and fair." He is right. To wit: government should not interfere in economic activity and should allow the greatest possible economic freedom between entrepreneurs and consumers, trading value for value to mutual benefit. But then Mr. Morgan puzzles us when he states that in allowing food trucks to operate downtown, local government is, by doing so, "picking one kind of business that they like or favor;” namely, food trucks.

Yet, Mr. Morgan would have government actively shield restauranteurs from food truck competition. As if Mr. Morgan is advocating that government ought to pick one kind of business that they like or favor; namely, restaurants. This is a contradiction. Mr. Morgan establishes a sound principle and then proceeds to violate it.

It would appear that Mr. Morgan is confused about the proper role of government as well as the rights of business people and their customers. One, food truck operators have a right to conduct a business that does not violate the rights of others. Two, consumers have a right to select from an array of food offerings without the interference of government or newspaper editors. Also, it is not the government's proper role to protect businesses from competition. On the contrary, it is the government's proper role to allow for maximum competition in a free market.

In using the force of government to protect one business over another – restaurants -- it is Mr. Morgan who would use government to violate individual rights and, therefore, turn Asheville into a ghost town by dictating economic activity to free adults.

RELATED

David Morgan's lame-ass response:
Asheville Tribune LTE

City Council: Food Truck Regulation

My comments on food truck regulations at city council: http://t.co/BvbasDE #avlgov

Food Truck Latest

Mobile Food Vending Ordinance (Proposed) -Ed Glines, Planner II

Enforcement of Mobile Food Vending -Shannon Tuch, Assistant Planning Director

Enforcement of Mobile Food Vending -Shannon Tuch, Assistant Planning Director
  

Food Truck Public Comment

These are my comments at the city council public hearing on mobile food vending regulations:

"There has been some concern about enforcement expressed and I'd like to review the status of this issue. Enforcement was cited as the ONLY concern coming out of the Planning and Zoning Commission. It was the reason the commission gave these regulations a negative recommendation as a consequence of a three to three tie on the vote. The regulations then went to the Public Safety Committee for a review specifically of enforcement issues and received a unanimous vote in support of the regulations and the enforcement capabilities on the part of city staff and police. This should, in effect, nullify the three negative votes from P&Z, resulting essentially in a unaminous positive recommendation from Planning and Zoning.

Also, we should not look only to city staff and police to address the issue of enforcement. Vendors have an interest in not only following the rules themselves but in pointing out violations of those rules by others. There is a local mobile food vending coalition that can perform a watchdog function in cooperation with proper authorities. Also, the general public is integral in making these regulations work for everyone. Many instances of code violation in Asheville are complaint-driven and I don't doubt that there are plenty of local citizens who would be happy to help keep an eye out for violations and document and report them. With the public sector and the private sector partnering in a comprehensive enforcement solution, it would seem to me that this is more than adequate to address enforcement concerns."

Radio: Food Truck Regulation

Tim Peck on 880AM Local Edge Radio on July 9, 2011, to talk about the current state of #avlfoodtruck regulation in #Asheville.