The Owensboro City Commission has delayed any action on a mobile food vending ordinance that would have repealed the city's four-year old provision limiting food trucks from parking anywhere within 100 feet of brick-and-mortar restaurants.
Commissioners unanimously approved a measure removing discussion on that matter from Tuesday's regularly scheduled meeting agenda.
Mayor Tom Watson said he not only wants to give himself more time to gauge the commissioners on how they will vote but he also wants to engage staff and downtown restaurant owners -- many of whom attended Tuesday's meeting -- on what other options may be available. The mayor has been public about his stance on the issue before, saying he would favor banning food trucks in the city altogether if it did not violate entrepreneurs' rights to free trade.
But in fact, officials said Tuesday, it is that very argument that has stirred discussion about the role of food trucks in Owensboro and where they should and should not be able to do business. According to City Attorney Steve Lynn, Food vendor plaintiffs in several federal legal battles against other U.S. cities with similar provisions have argued that limiting access amounts to economic protectionism.
"They've stated that they're being denied equal protection under the law," he said. "That infringes certain vendors' due process in that the city may be protecting some businesses by limiting access. There have been a number of cases that have been going on across the nation, and it seems to me that a jury or judge could make the determination that they are right that it is unconstitutional."
While it is true that government may reserve the right to regulate business in the interest of things like consumer protection, those regulations must be equal in the eyes of the law, Lynn said. The city of Owensboro cannot legally be in the business of picking and choosing winners.
Downtown restauranteurs have argued that the city entered into an informal agreement with them a decade ago when interest in a revitalized downtown sector was so high. Essentially, the city and those businesses willing to invest in the new downtown dream would protect each others' returns. Food trucks, which began to emerge in the city about seven years ago, threw a wrench in that plan.
"We as the city -- we as the taxpayers made an investment downtown, too," Watson said. "We made a huge investment, and that cannot be forgotten in these discussions."
But new details emerged Tuesday morning about what plans the city may be considering. The ordinance that was tabled Tuesday included language that also prohibits food trucks from doing business near city parks. City Manager Bill Parrish said it was his belief that such a provision would be unfair, especially if restaurants may have to realize the burden of a new form of competition.
Also on Tuesday, however, the city received a letter from the Institute for Justice, a public interest civil liberties law firm that represented food vendors in a Louisville lawsuit that was settled out of court. The Louisville Metro Council opted to repeal its almost identical ordinance in March when attorneys learned they may be fighting a losing battle.
Robert Frommer, a senior attorney for that firm, praised Owensboro's decision to consider repealing the two controversial aspects of the vending law.
"The institute applauds this effort, which (would) secure public health and safety while maximizing entrepreneurial opportunity and consumer choice," Frommer wrote. "IJ will continue to monitor developments as Ordinance 7-2018 makes its way through the legislative process."
In no uncertain terms, Lynn said Tuesday, he does believe that could be interpreted as a mild warning, if not a threat, of legal action. He said he does believe the city will be given the time it needs, however, to ponder both parties' interests further.
Watson said he anticipates bringing the ordinance back before the orders of business by early May, but he didn't rule out asking staff to rewrite or rework certain language in it. There are other provisions in the ordinance that could give the city more leeway in regulating trade. For example, the city charges food trucks $250 for a mobile food vending license in the city but $650 for a similar license in the downtown entertainment district, which encompasses many of the restaurants who have expressed concerns about an influx in competition.
Some experts say it's possible the city could increase the entertainment district vending license, while doing away with the 100-foot and parks provisions and still get the desired effect -- few if any food trucks downtown, except for special occasions or with the brick-and-mortar businesses' permissions.