Illinois’ top court has ordered up a cupcake truck’s constitutional challenge to two city of Chicago rules regulating the mobile food industry.
The Illinois Supreme Court will review a Chicago ordinance requiring food trucks to stay at least 200 feet from brick-and-mortar restaurants and a requirement the trucks maintain GPS monitoring devices onboard.
The case, LMP Services Inc. v. City of Chicago, No. 123123, is one of seven appeals the state’s top justices agreed to review this week. The court declined to look into 157 others while giving specific orders to the lower courts in one case.
An appeals panel in December upheld the rules in the face of claims by the food truck, known as Cupcakes for Courage, that they violate due process, equal protection and unreasonable search provisions in the state constitution.
The city approved the regulations in 2012 as part of a broader expansion of food truck operations within its borders. Updates to the Chicago Municipal Code in July that year created fixed parking for food trucks in the Loop, Near North, Lincoln Park, Lakeview and West Town areas.
It also described where the trucks could park in relation to stop lights and crosswalks, how they should store and prepare food, and how the Chicago Board of Health could enforce those rules
But the challenges came to Section 7-38-115(f) and Section 7-38-115(l). Those sections hold, respectively, that no food truck driver “shall park or stand such vehicle within 200 feet of any principal customer entrance to a restaurant which is located on the street level” and that each vehicle “shall be equipped” with a permanent GPS monitoring system.
Laura Pekarik, the owner of truck operator LMP Services, filed the lawsuit in November 2012, arguing the 200-foot rule violates due process and equal protection provisions in Article 1, Section 2 of the Illinois Constitution. Her suit also claimed the GPS rule violates Article 1, Section 6 protections against unreasonable search and seizure.
Cook County Circuit Judge Anna Helen Demacopoulos granted the city’s motion to dismiss the equal protection claim, but denied a motion for the due process and search claims. During discovery, the city laid out three reasons for the 200-foot rule — to balance the interests of food trucks and traditional restaurants, to nudge trucks toward underserved areas and to manage sidewalk congestion.
Regarding the GPS rule, the city said it needs to track food trucks in order to conduct health or administrative inspections. It claimed it had always been able to find the trucks using social media and thus had never requested the GPS data.
The judge ultimately granted the city’s motion for summary judgment, finding that the 200-foot rule survived rational basis review because the city did have a legitimate interest in managing sidewalk congestion and finding a middle ground between trucks and brick-and-mortar restaurants.
The judge also ruled that LMP didn’t have standing to challenge the GPS rule because its data had never been requested. Even if it had, she also ruled, the rule would survive because the city has a legitimate interest in food safety.
Justice Sheldon A. Harris authored the unanimous decision affirming the lower court ruling last year, writing first that the law need only survive rational basis review, which is “highly deferential” to the government, which only needs to show the law bears a reasonable relationship to a public interest.
That meant any of the city’s justifications for the law alone would be enough to uphold the law’s constitutionality. Indeed, the justices dismissed LMP’s argument that the 200-foot rule was “blatant protectionism” and unconstitutional, writing that protecting businesses that pay for property is within its purview.
“The 200-foot rule seeks to protect those in the food service industry who pay and support the [c]ity’s property tax base from those food businesses that do not,” Harris wrote in the 14-page decision. “Moreover, brick-and-mortar restaurants also pay utility taxes, lease taxes, and, yes, even restaurant taxes.”
The appeals panel, which also consisted of Justices Daniel J. Pierce and Mary L. Mikva, cited several cases showing governments have long had a right to favor some businesses over others, including when it comes to food.
The U.S. Supreme Court upheld a city ban on pushcart food vendors in the 1976 case City of New Orleans v. Dukes, for example, writing that New Orleans had a right to preserve an aesthetic it rationally believed had appeal to tourists.
Another line of cases pushed against LMP’s argument that the ban infringes upon the right to pursue a legal business. While people generally do have such a right, the panel acknowledged, “no individual or business has the constitutional right to conduct business from the city street or sidewalk.”
A 1936 decision, City of Chicago v. Rhine, for instance, upheld a ban on selling newspapers in the Loop and Wilson Avenue districts. The justices wrote that cases cited by LMP were also distinguishable from the facts here.
“Based on the above, LMP has failed to establish that the 200-foot restriction is arbitrary and unreasonable as having no relation to the [c]ity’s authority to promote its general welfare,” Harris wrote.
Next, the panel addressed the GPS requirement, noting that the sections in the Illinois Constitution cited by LMP are treated the same as those of the Fourth Amendment to the U.S. Constitution.
Citing a 2012 U.S. Supreme Court decision in United States v. Jones, the panel ruled the GPS regulation for food trucks is not actually a government search for purposes of the Constitution. Such searches require the state’s physical occupation of property or physical intrusion on a subject’s body, Harris wrote.
“LMP never alleged the [c]ity physically entered its mobile food truck to place the device, nor does it allege the device is [c]ity property,” the court wrote. “Because there is no trespass, no search occurred within the context of Jones.”
Thus, the panel affirmed the circuit court’s grant of summary judgment for the city.
The city is represented in the case by Senior Counsel Suzanne M. Loose. In a statement, the city’s Law Department said it can’t comment on the pending appeal, but noted the ordinance had already been upheld by two courts.
“More importantly, the regulations strike the right balance between the interests of food trucks and restaurants and create a healthy environment in which both can flourish,” the department said in the statement.
LMP Services is represented by Robert Frommer, the executive director of the National Street Vending Initiative at the Arlington, Va.-based Institute for Justice.
He said during an interview today that the 200-foot rule is bad law because decades of Illinois precedent says the government can’t enact restrictions on businesses for the express purpose of enriching more “politically favored” groups — in this case, the brick-and-mortar restaurants.
Frommer also noted that nearly 25 percent of people in the modern economy need some kind of permission from the government to do their work and upholding something like the GPS requirement here has “incredibly perilous consequences” for all of them.
“If you have a ruling that says you can subject people to warrant-less surveillance, suspicionless surveillance, just by dint of the fact that they need to get that government license, that means that about 25 percent of people, who need to get that license, could be subjected to that scheme,” he said.
He added later: “I think the Supreme Court taking this case is a powerful message that they care deeply about the Constitution and about the rights of ordinary Illinoisans to both earn an honest living and be secure in their privacy.”