Video: No-vending zones get defeated in El Paso

posted at 4:00 pm on May 28, 2011 by Ed Morrissey

The Institute for Justice won a big victory for mobile vendors in El Paso by having a protectionist zoning restriction repealed after filing lawsuits challenging their constitutionality. Street vendors had to conduct business outside of a thousand-yard zone where any other restaurants operated, a scheme that the city admitted had no basis in safety or health concerns. The local restaurant association pushed for the zoning restrictions as a way to protect their businesses, and the city responded by virtually outlawing mobile vendors from operating where potential consumers are:

IJ explained the fight in January:

Practiced since ancient times, street vending is more popular than ever. The Economist magazine predicted that in 2011 “some of the best food Americans eat may come from a food truck.” Vendors are the darlings of many food critics, and they even have their own reality show on the Food Network.

But El Paso, Texas, has recently made it illegal for mobile food vendors to operate within 1,000-feet of any restaurant, convenience store, or grocer. The city even prohibits vendors from parking to await customers, which forces vendors to constantly drive around town until a customer successfully flags them down–and then be on the move again as soon as the customer walks away.

Thus, while people across the country embrace mobile vendors for the vitality and creativity they bring to a local restaurant scene, El Paso has decided to threaten vendors with thousands of dollars in fines and effectively run them out of town. El Paso’s No-Vending Zone scheme is in place for one reason: to protect brick-and-mortar restaurants from honest competition. But economic protectionism is not a valid use of government power.

The idea that local government should protect one legitimate business from another is absurd. Even the almost-equally absurd attempts by Los Angeles to restrict fast-food franchises in low-income areas aren’t (explicitly) based on local protectionism, since higher-ticket restaurants are hardly rushing to fill vacancies in restaurant spaces in LA. Degrees of exclusivity in location are sometimes negotiated in private leasing agreements with landlords, but the city doesn’t have the right to tell one restaurateur that they can’t operate in the vicinity of another simply to protect one business at the expense of the second.

Do mobile vendors undercut restaurant business? Probably, but (a) only at the lower price points, and (b) that’s called competition.  People who want a restaurant experience won’t be eating from roach coaches or ice-cream trucks.  If the local McDonald’s or cheap eatery can’t compete on price and quality with the mobile vendors, why should consumers be denied the choice?

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Thanks to Governor Perry as of Friday voters will be required to (gasp) show a photo ID at the polls.

http://www.reuters.com/article/2011/05/27/us-voter-id-texas-idUSTRE74Q76Q20110527

(Use this photo of Perry. Obama will be looking at this pose a lot in the debates.)

Marcus on May 28, 2011 at 4:05 PM

If the local auto manufacturer can’t compete on price and quality with the foreign manufacturers, why should consumers be forced to keep them in business via legislation?

Winners and losers. The real purpose of progressive ideology.

BobMbx on May 28, 2011 at 4:06 PM

Look at these arses.

Schadenfreude on May 28, 2011 at 4:13 PM

Do mobile vendors undercut restaurant business? Probably, but (a) only at the lower price points, and (b) that’s called competition. People who want a restaurant experience won’t be eating from roach coaches or ice-cream trucks. If the local McDonald’s or cheap eatery can’t compete on price and quality with the mobile vendors, why should consumers be denied the choice?

Mobile vendors and restaurants have co-existed happily in such Leftist cities as Boston for ages. They don’t have such draconian regulations. Just stand outside Fenway Park an hour before game time!

Del Dolemonte on May 28, 2011 at 4:17 PM

Vendor trucks are awesome. I have never had a bad meal from one, and I have been to many several times (and in several different states around the country) because they taste better than a drive-through, have fresh ingredients and the owners are always happy to see you unlike the drone on the intercom at McDonalds or Dunkin’s.

One place in particular I remember well. It was in a very small, but very wealthy, town and was basically there to cater to contractors because the only other option was driving 20 minutes or more for a hot lunch/breakfast. They were the only show in town so of course the prices reflected that, but they kept people lining up by using great ingredients and simple recipes that could be prepared quickly so you could eat and get back to work. They must have made a fortune because they were always busy and had a huge client base since there were several landscaping and construction crews in the area almost all year.

Mord on May 28, 2011 at 4:20 PM

I don’t know if this is so cut and dried as free market and let the besy restaurant win.

Restaurants have to deal with umpteen local laws, ordinances, minimum wage, OSHA, etc. A vendor on the other hand is an illegal that doesn’t even pay taxes most likely. It’s not a level playing field at all.

angryed on May 28, 2011 at 4:21 PM

Mebbe i go to el paso and sell taco from my truck Thank maybe a whiteboy could do that?

davidk on May 28, 2011 at 4:22 PM

This is an issue that really bugs me. There’s no reason why food isn’t cheaply and widely available, as it is in countries all around the world, both rich and poor (for endless examples, just watch No Reservations on the Travel Channel). Singapore, for example, encourages hawker stalls, places where you can get inexpensive food of all varieties. But because of zoning laws here and a never-ending desire for tax revenue, we’re forced to go to higher-priced chains or restaurants.

Bill Ramey on May 28, 2011 at 4:22 PM

angryed on May 28, 2011 at 4:21 PM

If you think roach coaches don’t have regulations, you are woefully misinformed. In Kansas City some dude walks around with thermometer and will check your steam table.

And most of the dealers are bona fide American entrepreneurs just tryin to make a living.

Yes, there’s an illegal immigtation problem, but to broadbrush ligitimate businesses only reveals a prejudice.

davidk on May 28, 2011 at 4:28 PM

I dont see how Mobile Vendors in pact sit down venues, they are the Drive Thru for pedestrians, and I dont see Chili’s, Outback, Applebess, Ruth Chris, or any of the other Sit down establishments complaining that McD’s is stealing their business

It is a different market segment.

If a sitdown restaurant is put out of business by a roach couch, it probably was not a good place to eat anyway and needed to be shutdown

the_ancient on May 28, 2011 at 4:31 PM

I don’t know if this is so cut and dried as free market and let the besy restaurant win.

Restaurants have to deal with umpteen local laws, ordinances, minimum wage, OSHA, etc. A vendor on the other hand is an illegal that doesn’t even pay taxes most likely. It’s not a level playing field at all.

angryed on May 28, 2011 at 4:21 PM

Where did you get that, Food Trucks have the follow the EXACT SAME,if not HARSHER, regulations, for Food Prep and storage, It does not matter if your in a Building or in a Van, All of the Food Regulations must be followed and they are inspected by the Heath Dept just like a normal place of business.

the_ancient on May 28, 2011 at 4:34 PM

angryed on May 28, 2011 at 4:21 PM

There aint no such thing as a “level playing field”. Even if we removed ALL regulations, there will be winners and losers. The government can’t turn a person into a good cook with a personality conductive to face to face transactions through rules and laws. The regulations that you complain about actually hurt the small guys more than the chain stores.

davidk on May 28, 2011 at 4:28 PM

Good points!

Mord on May 28, 2011 at 4:37 PM

Restaurants have to deal with umpteen local laws, ordinances, minimum wage, OSHA, etc. A vendor on the other hand is an illegal that doesn’t even pay taxes most likely. It’s not a level playing field at all.

angryed on May 28, 2011 at 4:21 PM

Hogwash!

Take a look at all you have to go thru to be a vendor in Boston:

http://www.cityofboston.gov/publicworks/PrmVending.asp

And in New York City

Cart owners and operators are subject to hundreds of rules and regulations. The most common violation, accounting for 22 percent of all fines, is standing “too far from the curb”—farther than eighteen inches is deemed to be crowding the sidewalk. You can’t vend within twenty feet of a building entrance. Not offering a customer a receipt is a violation, as is vending at a bus stop, despite wildly differing ideas of what constitutes a bus stop. A cart can’t be more than ten feet in length (curiously, there are no rules on width), and food can’t rest on a wooden surface. A typical vendor pays $433 a year in fines, and New York’s courts deal with 59,000 vending-related cases every year. The fine for the “failure to conspicuously display a license” (a vendor must obtain a license from the city, which consists of submitting several forms to the Department of Health, paying $200, and taking a two-day food-handling class) is a particularly brutal one: At $1,000, it can put a cart out of business.

Every cart is inspected at least once a year by a Health Department inspector, who checks to see that the operator cooks food at the proper temperature, doesn’t sell spoiled food, and has a proper water supply for hand-washing. Carts are also inspected randomly. Most garages have special “showers” where carts are hosed down at the end of each day, and fines—as high as $1,000 for certain violations—act as an incentive for proper hygiene.

Del Dolemonte on May 28, 2011 at 4:45 PM

Bill Ramey on May 28, 2011 at 4:22 PM

ummm, Adjusted for Inflation food prices are still very low, 100 years ago a person worked all day just to afford the food on the table and a roof over the head, there was almost no such thing as “expendable cash” everything was necessities and when I mean ALL DAY, I mean ALL DAY not a 8hr shift…

While food prices are on the raise, and I certinly do not want to go back to those days, food here in the USA is widely available and is still someone low cost compared to historical averages, infact many people want food prices to Raise, including Mrs. Obama because High food Prices means lower Obesity.

the_ancient on May 28, 2011 at 4:48 PM

Del Dolemonte on May 28, 2011 at 4:45 PM

I would bet that Carts are more vigorously regulated than 90% of restaurants that offer anything over $10 meals. Because if it is cheap it has to be poor quality, doesn’t it?

Do you think that a place that sells a porterhouse for 60 bucks gets the same kind of scrutiny as a guy selling hotdogs off a propane grill?

Mord on May 28, 2011 at 4:52 PM

So now the politically correct term for “roach coach” is “mobile vendor”? And the guy driving it isn’t a “Mexican”…he’s a “Hispanic”?

Just checking….

repvoter on May 28, 2011 at 4:55 PM

Do you think that a place that sells a porterhouse for 60 bucks gets the same kind of scrutiny as a guy selling hotdogs off a propane grill?

Mord on May 28, 2011 at 4:52 PM

A restaurant with running water and the cash to afford proper cleaning tools? Why shouldn’t they be considered a lower risk for contamination?

Ronnie on May 28, 2011 at 5:01 PM

Maybe the Institute for Justice can work on getting lemonade stands legal…

Gohawgs on May 28, 2011 at 5:02 PM

Ordinances similar to this one were trotted out in Whitefish, MT for the same “protect” the brick and mortar establishment reasons..

Gohawgs on May 28, 2011 at 5:04 PM

Where did you get that, Food Trucks have the follow the EXACT SAME,if not HARSHER, regulations, for Food Prep and storage, It does not matter if your in a Building or in a Van, All of the Food Regulations must be followed and they are inspected by the Heath Dept just like a normal place of business.

the_ancient on May 28, 2011 at 4:34 PM

And I’m sure every illegal operating a drive by taco stand follows all those regulations to a tee. After all they obey immigration laws so it stands to reason they obey health laws. Oh wait…

angryed on May 28, 2011 at 5:09 PM

Don’t Mess With Texas…..look it’s spelled out in English how hard is this concept ;)

Dr Evil on May 28, 2011 at 5:15 PM

angryed on May 28, 2011 at 5:09 PM

Why do you hate Liberty and Freedom? Why do you love Big Government?

the_ancient on May 28, 2011 at 5:17 PM

[E]conomic protectionism is not a valid use of government power.

That should be a campaign slogan for 2012.

ss396 on May 28, 2011 at 5:17 PM

Don’t Mess With Texas…
Dr Evil on May 28, 2011 at 5:15 PM

Unless your the TSA, then Texans Cry and hide under the table with their Blankie

the_ancient on May 28, 2011 at 5:22 PM

And I’m sure every illegal operating a drive by taco stand follows all those regulations to a tee. After all they obey immigration laws so it stands to reason they obey health laws. Oh wait…

angryed on May 28, 2011 at 5:09 PM

Which ones are illegals?

CWforFreedom on May 28, 2011 at 5:24 PM

Well…

… at least the borders are secure.

Oh, wait…!

Seven Percent Solution on May 28, 2011 at 5:26 PM

Which ones are illegals?

CWforFreedom on May 28, 2011 at 5:24 PM

I think angryed would like for everyone to have a mark on their forehead or right hand that show they are a citzen, the only people with the mark will be allowed to purchase goods…

the_ancient on May 28, 2011 at 5:27 PM

I think angryed would like for everyone to have a mark on their forehead or right hand that show they are a citzen, the only people with the mark will be allowed to purchase goods…

the_ancient on May 28, 2011 at 5:27 PM

When around 30 % of Texas and over 10% of all Americans are of latino or Hispanic heritage I think some big ASSumptions are being made by Angryed.

CWforFreedom on May 28, 2011 at 5:33 PM

A restaurant with running water and the cash to afford proper cleaning tools? Why shouldn’t they be considered a lower risk for contamination?

Ronnie on May 28, 2011 at 5:01 PM

That was not really my point, but you are right as far as “risk” concerns go.

I’m in a small minority as far as food safety concerns go. I believe that your immune system is like everything else in your body….it needs a workout regularly.

Mord on May 28, 2011 at 5:34 PM

A restaurant with running water and the cash to afford proper cleaning tools? Why shouldn’t they be considered a lower risk for contamination?

Ronnie on May 28, 2011 at 5:01 PM

Is some areas the food has to be prepared in the restaurant then taken on to these food vans. You though should go talk to people who have worked in all types of restaurants and find out what goes on behind the swinging doors. There are interesting stories from the most expensive to the least.

CWforFreedom on May 28, 2011 at 5:39 PM

The idea that local government should protect one legitimate business from another is absurd.

The Law: What Is Law?

davidk on May 28, 2011 at 5:40 PM

When it comes to local laws like this or to zoning decisions, the legality doesn’t really matter. The squeaky wheel gets the grease. If there is a group of loud, pushy people who want the vendors’ rights trampled, then so be it.

Municipalities usually get away with unlawful ordinances and decisions because it’s so time consuming and expensive to challenge them in court.

And this law about the vendors isn’t even as bad as what some munis do. The vendors do have to operate on public property, so they can expect more limitations. Most twps have moved well beyond that to micromanage what you can and can’t do on your own property.

forest on May 28, 2011 at 5:46 PM

The vendors aren’t illegal they’re just undocumented restaurants, grocers and convenience stores. Maybe El Paso could expand its sanctuary city status to include those undocumented vendors as being exempt from police action as they do with “undocumented aliens” (who always seem to have valid documentation from a foreign government though not the USA).

eaglewingz08 on May 28, 2011 at 5:50 PM

forest on May 28, 2011 at 5:46 PM

but but that is to protect property values dont you know… It is for your own good citizen

the_ancient on May 28, 2011 at 5:51 PM

Most twps have moved well beyond that to micromanage what you can and can’t do on your own property.

forest on May 28, 2011 at 5:46 PM

http://www.thenownews.com/travel/City+shuts+down+lemonade+stand/3367125/story.html

http://abclocal.go.com/kabc/story?section=news/bizarre&id=7596434

I ran a google search for “boy selling lemonade.” Dude, it will break your heart!

By far the majority of the stories were about kids trying to raise money for a sister with chemo treatments, colon cancer research, and other equaly unselfsih reasons. And then there was the story about a 4 year old boy who selling lemonade and darted into traffic. Didn’t make it.

davidk on May 28, 2011 at 6:07 PM

According to the Small Business Administration, the cost to the economy of government regulation is about $1.75 trillion per annum.

http://www.ocregister.com/opinion/regulatory-302259-milk-sunstein.html

davidk on May 28, 2011 at 6:13 PM

If the local McDonald’s or cheap eatery can’t compete on price and quality with the mobile vendors, why should consumers be denied the choice?

…you could as well substitute any business venue, type or activity…that our totalitarian “betters” feel themselves, by virtue of their…er…virture, to pick and choose for us is not in dispute, but I don’t think that it’s often considered why they feel it necessary to do all the decidin’….

…it’s not just that we’re all a bunch of under-evolved knuckle-draggers, as evidenced by the popularity of NASCAR and the paucity of a properly set up wine list in our homes…and by the continued popularity of Ronald Reagan…it’s just that, well darn it, we’re not them!

…can’t deny that, can ya?

…that, and seeing as they’re doin’ all that decidin’, why shouldn’t they decide to give their friends a leg-up…the Obama administration is doin’ that with all this “green” business contracting (“green” as in slime)…and they’re letting their union cronies in on some of the decidin’….

Mobile vendors and restaurants have co-existed happily in such Leftist cities as Boston for ages. They don’t have such draconian regulations. Just stand outside Fenway Park an hour before game time!

Del Dolemonte on May 28, 2011 at 4:17 PM

…maybe the Left has been distracted up in BeanTown…they’ve certainly been a’choosin’ and a’decidin’ who is and isn’t among the elect, and just haven’t got ’round to decidin’ about the political correctness (and depth of pockets) of the Italian sausage vendors outside Fenway….

…aaaah…those are dandy dogs…I can smell ‘em a’cookin’, all these years on….

Puritan1648 on May 28, 2011 at 6:14 PM

Is some areas the food has to be prepared in the restaurant then taken on to these food vans. You though should go talk to people who have worked in all types of restaurants and find out what goes on behind the swinging doors. There are interesting stories from the most expensive to the least.

CWforFreedom on May 28, 2011 at 5:39 PM

Every restaurant in the country could close down tomorrow and I would care not. They’re generally ripoffs and from what I’ve seen of the kitchens/staff, they’re generally pretty disgusting.

Dr. ZhivBlago on May 28, 2011 at 6:17 PM

They’re generally ripoffs and from what I’ve seen of the kitchens/staff, they’re generally pretty disgusting.

Dr. ZhivBlago on May 28, 2011 at 6:17 PM

My bottom line point was that someone should not feel safe just because they went into a posh restaurant and overpaid :) for a steak.

CWforFreedom on May 28, 2011 at 6:20 PM

I avoid them as much as possible. Seems that people around me who can’t fathom the idea of actually cooking and eating at home, have a bout with vomiting and/or diarrhea within hours after eating out about every two months or so.

Unfortunately, Chef Ramsay or those like him are few and far between.

Dr. ZhivBlago on May 28, 2011 at 6:32 PM

Unless your the TSA, then Texans Cry and hide under the table with their Blankie

the_ancient on May 28, 2011 at 5:22 PM

I don’t know what you are talking about.

Dr Evil on May 28, 2011 at 6:36 PM

If the local McDonald’s or cheap eatery can’t compete on price and quality with the mobile vendors, why should consumers be denied the choice?

Because that’s the new American way. Obama and Michelle said so. *sigh*

capejasmine on May 28, 2011 at 7:01 PM

but but that is to protect property values dont you know… It is for your own good citizen

the_ancient on May 28, 2011 at 5:51 PM

Yeah, tell me about it. Some ordinances have that written in. You need to prove that your project won’t decrease property values. Not only is the applicant expected to prove a negative, but to prove a negative in the future. It pretty much gives the board the absolute power to turn down any application that is unpopular or that they don’t like for any other reason.

Private property scarcely exists in this country, and it’s every bit as much fault of local government as it is the feds.

forest on May 28, 2011 at 7:13 PM

El Paso is expanding like a crooked bolo tie, to the northwest, southeast and due north, since it’s hemmed in by Juarez, Fort Bliss and the Franklyn Mountains. Lots of new restaurants on the edges (Five Guys and P.F. Changs being the latest arrivals), and while the trucks operate there, the main areas the tend to prowl are in the central and older sections of the city.

Where I’m at,a couple of hundred miles to the east of El Paso, the local council had a big row a few months ago over the mobile vendor vans. Same deal as in El Paso, with some restaurant owners wanting them banned outright, but in the end the city opted for two main requirements:

1.) Acquire a food vending permit from the local health department;

2.) Charge sales tax and turn over what you owe to the state (8 1/4 cents in Texas of which up to 2 cents goes to local taxing entities);

Which is really all that needs to be done. I can see the restaurants’ point if the mobile vans are getting away without paying the same taxes as they are, and the health requirements are obvious. Anything more than that is just an attempt to use government to shut down a competing business.

jon1979 on May 28, 2011 at 7:28 PM

I guess I’ll play devils advocate since I owned a restaurant for 17 years. Is the vendor required to carry insurance to the tune of 1 million/3 million/ 1 million like the restaurant? (amounts to about 25k a year) Is the vendor required to have all the state, local, and federal permits? Is the vendor required to put a sprinkler system in his truck? Is he/she required to buy the specific chemicals to clean the dishes? Are they required to have fire extinguishers and to have them maintained by an outside service every 6 months? Does the health inspector inspect his truck every month? Does each violation come with a fine anywhere from $100 to $1,000?

I’ve got no problem with competition but how about evening the playing field for all?

Capitalist Infidel on May 28, 2011 at 7:41 PM

Every day I can’t stand rent seeking trash, more and more…

MNHawk on May 28, 2011 at 7:58 PM

I don’t care what they do as long as they are legal residents, have a taxpayer ID number and file the required taxes…

Khun Joe on May 28, 2011 at 8:11 PM

Illegal aliens, felons, and dead voters hardest hit.

Mormon Doc on May 28, 2011 at 10:48 PM

Whoops – my mind was on Perry signing the voter ID law. As you were.

Mormon Doc on May 28, 2011 at 10:50 PM

Capitalist Infidel on May 28, 2011 at 7:41 PM

Excellent idea. Let’s make sure all of the vendors have sprinkler systems.

Mormon Doc on May 28, 2011 at 10:52 PM

No-vending zones get defeated in El Paso

Better headline: “The Never-Vending Story”

Dr. Charles G. Waugh on May 28, 2011 at 11:27 PM

Anthony Weiner Sexing Pic Large Erection On Twitter ??

http://conservativeblogscentral.blogspot.com/2011/05/anthony-weiner-sexing-pic-large.html

Nearly Nobody on May 29, 2011 at 12:58 AM

The idea that local any government should protect one legitimate business from another is absurd.

disa on May 29, 2011 at 6:50 AM

Telling a Hispanic city like El Paso not to have mobile venders is like telling Irish not to have pubs. That city council is out of touch!

WannabeAnglican on May 29, 2011 at 7:40 AM

A restaurant with running water and the cash to afford proper cleaning tools? Why shouldn’t they be considered a lower risk for contamination?

Ronnie on May 28, 2011 at 5:01 PM

Heck, even hot dog carts have running water. You can bay NSA certified hot dog carts from a variety of vendors.

rokemronnie on May 29, 2011 at 12:17 PM

Do mobile vendors undercut restaurant business? Probably, but (a) only at the lower price points, and (b) that’s called competition. People who want a restaurant experience won’t be eating from roach coaches or ice-cream trucks. If the local McDonald’s or cheap eatery can’t compete on price and quality with the mobile vendors, why should consumers be denied the choice?

It’s not a level playing field, at least not in LA. The roach coaches do NOT pay local taxes – they simpy buy a biz. license for a couple hundred/year (if they are honest – others don’t even do that). I doubt most around here pay other taxes, they are not inspected for health code violations (in part because LA is so understaffed they can barely make it to permanent restaurants), don’t offer restroom facilities (required by law for permanent restaurants), don’t have garbage pick up, and generally leave a mess behind in residential areas.

LASue on May 29, 2011 at 2:17 PM

As the former mayor of a small Michigan tourist community, I can understand some of the concerns expressed by the “brick and mortar” businesses towards the truck vendors.

In my community it is the core businesses that support year around through their taxes our Downtown Development Assoc., support the Chamber of Commerce, Advertise in statewide publications, support web sites, pay “ready to serve” fees for sewer and water, contribute to the festivals and events in both time and treasure in order to attract large summer crowds. It is a little frustrating to these businesses if we allow outside vendors to occupy public space at $100. a permit for the 6 or 8 best week-ends.

We strive to offer the finest “Michigan” experience to our visitors, including a good mix of vendors and local businesses. Although it should not be in the purview of local government to determine who gets in and who doesn’t I can understand the frustration felt by the local business community.

For this reason we have put restrictive language and seemingly difficult requirements in our vendor zoning laws.

Tonynoboloney on May 29, 2011 at 3:23 PM

Do mobile vendors undercut restaurant business? Probably,

Not for me.

I hit them specifically when I don’t want to go into a restaurant.

roy_batty on May 29, 2011 at 9:08 PM

Apparently the trucks have a better product at a cheaper price than the brick and mortar guys and the trucks are supplying what the public wants. This is wrong why? So upgrade your product. That shouldnt be too hard for McD’s or Burger King since they are pretty much the bottom of the barrel now.

abcurtis on May 30, 2011 at 8:54 AM