«Contesting the streets Volume 18, number 1 • 2016 U.S. Department of Housing and Urban Development | Office of Policy Development and Research ...»
stay in one location, or they require vendors to move when not making a sale (Esparza, Walker, and Rossman, 2014; Morales and Kettles, 2009a). In a survey of food truck regulations in 11 cities, 2 had caps on the number of permits, 4 had time limits on parking, 7 had proximity bans near restaurants, and all 11 had restricted zones (Esparza, Walker, and Rossman, 2014).
The complex regulations can make it impossible for vendors to operate legally. Irregular enforcement enables street vending even in restrictive environments but also leaves vendors vulnerable.
Vendors can be fined. They lose time during court appearances and revenue when their goods are confiscated, which creates an unstable work environment. Between 2006 and 2010, New York issued 127,758 notices of violation (Kettles, 2014). Because much enforcement is mostly complaint driven (Kettles, 2007), business owners’ complaints and, at times, harassment determine how and where vendors operate as much as specific regulations (Devlin, 2011). Even in Portland, Oregon, where food trucks are authorized, Newman and Burnett (2013: 245) argued that Portland’s “laissez-faire attitude towards minor infractions” has contributed to the street food scene’s success.
The Assumptions Underlying the Current Regulatory Approach Are restrictive policies necessary? In the 2010s, the food truck regulation discussions have focused on protecting brick-and-mortar establishments. Business groups—business improvement districts, restaurant and hotel associations, and business associations—have supported strict regulations, and city officials have publicly stated that protecting businesses is a primary concern. Because cities cannot explicitly limit competition, they subsequently use pedestrian congestion to justify the ordinances if and when they are challenged. Because the vendors promote their interests and many residents actively support vendors, however, cities also have attempted to balance competing positions. Nevertheless, because street vending regulation and enforcement are complaint driven, the result is a process that unfairly supports some vendors over others instead of addressing direct impacts. A close look at vending activity and the debates, however, suggests that planning could resolve direct impacts and the regulations are not serving obvious public purposes. The following subsections outline the current approach and possible alternatives.
Assumption 1: Adjacent Businesses Must Be Protected Sidewalks have an ambiguous position as public spaces that also are the front yards of abutting businesses and residents. As public spaces, they are where people travel, see or communicate with others, and trade and socialize. Sidewalk activity nonetheless affects nearby properties more than other residents and businesses (Loukaitou-Sideris and Ehrenfeucht, 2014). U.S. restaurant and business associations have argued that food trucks are unfair competition to or adversely affect abutting brick-and-mortar businesses (Kettles, 2007; Loukaitou-Sideris and Ehrenfeucht, 2009;
Newman and Burnett, 2013; Stoller, 1996). They argue that food truck owners do not pay rent and have lower water and disposal fees. Because food trucks can arrive for the most lucrative hours, they can skim business during busy times without the sunk costs. In Portland, the Oregon Restaurant & Lodging Association also has argued that stationary food carts are unfair competition because they have lower costs than restaurants, but they do not change locations (Newman and Burnett, 2013).
City officials respond to concerns about unfair competition in city after city, in both the public media and council chambers. A search of the LexisNexis® Academic Search database’s Major World Publications using the keywords “food trucks” from January 1, 2008, to July 15, 2015, returned more than 500 articles from 2011 to 2015 that discussed food truck proponents and opponents.
The two main topics included the arrival of food trucks as a new food trend and debates over new regulations. The most frequently reported concern was the effect on established restaurants, or, in the Tampa Bay Times’ words, “Bricks and Mortar vs. Wheels and Steel” (Lang, 2012). The following paragraphs consider the controversies in Albuquerque, Chicago, and New Orleans in more detail.
In the case of Albuquerque, the city had few restrictions when new food trucks started operating.
In 2015, the city had approximately 100 food trucks. In early 2015, the city considered a new ordinance restricting food trucks from operating within 100 feet of brick-and-mortar restaurants unless they received explicit permission from the property owner. According to Isaac Benton, the city councilor who proposed the ordinance, the point was to strike a balance between the restaurant and mobile vendors, citing the potential for unfair competition. The New Mexico Restaurant Association supported the ordinance because it would reduce direct competition, but the 100-foot rule would effectively restrict access to the most lucrative locations, such as the Central Avenue corridor near the University of New Mexico (McCay, 2015). In nearby Santa Fe, the Santa Fe Downtown Merchants Association representative also responded, “I don’t think it’s fair for the 22 restaurants within a block of the Plaza” (Last, 2015) to a proposal to allow food trucks on the Santa Fe Plaza at night.
In Chicago in 2010, two chefs approached their aldermen about revising Chicago’s mobile food vending ordinance to allow cooking. When Chicago Alderman Scott Waguespack introduced such an ordinance, he met with resistance from Alderman Tom Tunney, who was a member of the Illinois Restaurant Association, because the trucks would compete with brick-and-mortar restaurants (Esparza, Walker, and Rossman, 2014). Illinois Restaurant Association President Sheila O’Grady stated that food trucks should be confined to food deserts (Huffington Post, 2011).
After the proposed ordinance languished for more than a year, in 2012, the mayor and numerous aldermen passed an ordinance that allowed food trucks to cook (City of Chicago, 2012), but the food trucks were prohibited within 200 feet of restaurants except at designated food truck stands and were required to move every 2 hours. Given the density of restaurants, the 200-foot proximity restriction effectively eliminated food trucks from most of the city’s downtown Loop. Two food truck operators have challenged the 200-foot restriction. Chicago overturned a 200-foot regulation previously, in 1986, but it was reintroduced in 1991 (Gowins, 2014).
In 2011, when New Orleans food truck operators began to put pressure on the city to revamp its food truck regulations, the city responded with a less restrictive ordinance. The previous ordinance capped active vendor permits to 100, set 45-minute time limits, and had a 600-foot restaurant and school buffer. In 2012, the first proposed ordinance reduced the restaurant buffer to 100 feet.
Councilmember Stacy Head and the city attorney questioned whether a restaurant buffer was constitutional (Allman and Woodward, 2012), and Mayor Mitch Landrieu subsequently vetoed the ordinance. Although other councilmembers defended the restriction because it was protecting
cuisine-based tourism, a primary New Orleans industry, the provision was not reintroduced.
Nevertheless, the subsequent ordinance restricted food trucks from downtown and the historic French Quarter.
In addition to implementing locational restrictions, cities propose time limits to prevent food trucks from operating like stationary businesses. Chicago and New Orleans have 2- and 4-hour limits, respectively. Albuquerque also recently considered a 4-hour limit. Requirements vary by city, from the time necessary to make a sale (an ice cream truck model) to Portland’s stationary food carts. Nonetheless, food truck regulations are changing rapidly. Washington, D.C., lifted its requirement that trucks move unless selling to a customer (Esparza, Walker, and Rossman, 2014).
Los Angeles enacted a 1-hour restriction in 2008, but it was overturned because it preempted the state’s vehicle code (Morales and Kettles, 2009a).
Are such regulations necessary to protect brick-and-mortar restaurants and businesses? One way to answer this question would be to examine how street vending affects adjacent businesses.
Restaurants can benefit from vibrant sidewalk life. One business survey in Portland found that 69 percent of surveyed restaurant owners and 94 percent of other business owners ranked food carts as positive or very positive (Urban Vitality Group, 2008). Street food may compete with takeout establishments, however, where it becomes a local, fresh alternative to fast food (Intuit, 2012;
Newman and Burnett, 2013; Urban Vitality Group, 2008), but it is not clear over what distances.
New food trucks, for example, use social media extensively, and more than one-half the respondents in one survey found the truck through social media. Therefore, street vending might not primarily compete with adjacent eateries (Wessel, 2012). In many cases, street vendors differ from nearby brick-and-mortar businesses because they have less selection and fewer goods, no seating or other amenities associated with full-service restaurants, no changing rooms when selling clothes, and no protection from the weather (Kettles, 2007).
Adjacent businesses have also expressed concerns about trash, noise, scents, and aesthetics (Kettles, 2007; Urban Vitality Group, 2008). In Portland, one analysis found trash was a problem for food carts operating on private property but not on public property, where trashcans were available. Most respondents from both public and business surveys heard no noticeable noise from food carts. In a public intercept survey, 65 percent noticed the scents but, of those, 86 percent found them pleasant (Urban Vitality Group, 2008). Further analysis could better evaluate potential effects, and most could be addressed through planning.
A different question is whether the restrictions serve a legitimate public interest. People seek food that is affordable and convenient. Readily available street food might change buying behavior because residents have more convenient options. In one survey, 48 percent of respondents reported a food truck purchase replaced food at or from home (Intuit, 2012). Fewer than 20 percent of respondents in a survey of Portland food cart customers anticipated frequenting vendors that moved to brick-andmortar establishments with higher prices (Urban Vitality Group, 2008). In addition, cities do not have the legal authority to control commerce or competition. Municipalities can address concerns that fall within their police power that allow for regulations to protect public health, safety, and general welfare. Even though the public discussion focuses on competition, municipalities defend their street vending ordinances based on impacts including pedestrian congestion or trash.
Assumption 2: The Potential for Pedestrian Congestion Justifies Street Vending Restrictions The street is overseen by multiple agencies with different objectives (Loukaitou-Sideris, Blumenberg, and Ehrenfeucht, 2004), and most work under what Blomley (2011) called “traffic logic” that assumes unimpeded travel is the street’s purpose. Other uses—whether people or stationary objects—are considered impediments. For more than a century, unimpeded travel has been the legal justification curtailing other sidewalk activities, even though the conflicts leading to the prohibitions were based on competition or the desire to modernize the disorderly city (Ehrenfeucht and Loukaitou-Sideris, 2007).
The reason for this justification is clear. Local governments can draw on their police power to eliminate sidewalk and street obstructions, but they have less authority to restrict other productive activities. They cannot overtly protect one business from another (Novak, 1996). As a result, parallel discussions occur. For example, in late 20th century New York City, business associations were forces behind campaigns to remove vendors (Loukaitou-Sideris and Ehrenfeucht, 2009; Stoller, 1996), and former mayor Rudolf Giuliani established the Street Vendor Review Panel as part of his initiative to eliminate street-level disorder (Stoller, 1996; Vitale, 2008). The Panel, however, evaluates potential impacts based on pedestrian congestion.1 Are vending restrictions necessary to ensure that pedestrians can walk along sidewalks without unreasonable disruptions? Fifty years of research on pedestrian behavior and public space suggests that street vending and walking can be compatible. Pedestrians are attracted by other people and activities, and they enjoy unexpected occurrences (Gehl, 2011; Goffman, 1971; Lofland, 1998;
Stevens, 2007; Whyte, 1988). Pedestrians are also able to walk through changing and varied pedestrian environments without formal regulations (Whyte, 1988). They can change direction, move in front of or behind others to get through narrow spaces, and walk past people with little disruption to flow or speed (Goffman, 1971; Helbing et al., 2001; Whyte, 1988). Finally, in dense areas and crowded cities, pedestrians become more efficient (Whyte, 1988). This research suggests that the presence of street vending will not impede pedestrian flow.
An analysis of food trucks operating in Chicago supports these findings and suggests that both street design and patterns of public-space behavior facilitate compatibility between pedestrians and food truck customers. In October 2013, pairs of graduate students observed seven sites in the Chicago Loop for 37 2.5-hour periods to understand how food trucks affected pedestrians and how food truck customers and pedestrians interacted. During the observation periods, 82 food trucks operated at the sites, and 77 of those trucks were observed. Food trucks were present during 34 observation periods, 1 of which was a food truck rally in Daley Plaza. Following a protocol, the observers counted the number of food trucks and food truck customers, the number of customers in line at regular intervals, and how often food truck customers or other sources disrupted pedestrian flow. The observers also wrote extensive qualitative field notes.
Consistent with findings from the pedestrian behavior literature, when lines or customer clusters formed, pedestrians were able to walk through or veer around lines with only slight pauses and N.Y. ADC. LAW § 20-465.1: NY Code - Section 20-465.1.