El Paso Vending - Background

Litigation Backgrounder

Mean Streets:

El Paso Mobile Food Vendors Challenge City’s Effort to Run Them Out of Town

The Issue in a Nutshell

Convenient, delicious, and inexpensive—mobile food vending has been a recipe for success in tough economic times.  Across the nation, consumers have come to appreciate the diverse menus and low prices that mobile vendors provide.  Many government bureaucrats, on the other hand, have been looking for ways to put mobile vending on ice.  In cities across the country—and often where you would least expect it—mobile vendors are under attack.

The city of El Paso, Texas, has recently made it illegal for mobile vendors to operate within 1,000-feet of any restaurant, convenience store, or grocer.  Thus, while many cities embrace mobile vendors for the vitality and creativity they bring to a local restaurant scene, El Paso has turned itself into a No Vending Zone.  And if that weren’t enough, El Paso also prohibits vendors from parking to await customers.  Instead, hungry El Pasoans must be waiting at the curb before a vendor can stop to serve them.  

El Paso is making a blatant attempt to run mobile vendors out of town in order to protect brick-and-mortar restaurants.  But economic protectionism is not a valid exercise of the government’s police power.  The Constitution prohibits the government from choosing winners and losers in the marketplace.  That’s the role consumers are supposed to play by spending their money at businesses that meet their needs while avoiding those that do not.

Among the vendors currently caught in El Paso’s crosshairs are Yvonne Castaneda, Maria Robledo, Martha Avila, and Michelle Garcia.  These women own and operate mobile food trucks in El Paso as a primary source of income for them and their families.  Over the course of many years, they have developed loyal customer bases and, until August 2009 when El Paso changed the law, had operated legally and without incident.

That all changed once El Paso made it illegal for mobile vendors to operate within 1,000 feet of any restaurant, grocer, or convenience store; and, at about the same time, began aggressively enforcing a restriction that does not allow vendors to park in order to await customers.  Violators face thousands of dollars in fines.

Left with nowhere to go and no viable options to keep their businesses operating, Yvonne, Maria, Martha, and Michelle have filed a federal lawsuit in the Western District of Texas, El Paso Division, against the city of El Paso challenging the constitutionality of its economic protectionism and fighting for their right to keep vending on the streets of El Paso.  They are represented by the Institute for Justice, which is beginning a national initiative to defend street vendors from unconstitutional attempts to shut them down so that brick-and-mortar businesses do not have to compete against them.

 

Introduction

 

Street vending has long been an entry point for entrepreneurship in America.  From sidewalk book sellers to chrome-lined mobile food trucks, vending takes many forms.  What vendors have in common is the ability to go to their customers rather than asking customers to come to them.  This flexibility, combined with low prices and eclectic offerings, has made mobile vending—a kind of street vending—more popular than ever in these difficult and uncertain economic times.  In short: vending is hot, and smart cities have recognized that mobile vendors play an important role in developing a lively, local business climate.

In contrast with the growing public interest in and enthusiasm for mobile vending, many city governments have displayed outright hostility toward vendors.  Across the country, these cities have adopted laws that punish vendors for choosing a different business model than their brick-and-mortar competitors.  These laws have nothing to do with protecting the public health and safety—laws about food handling and traffic safety have been on the books for decades—and everything to do with protecting restaurants from competition.

Nowhere is this more true than in El Paso, Texas, which has long had a thriving community of mobile vendors.  Whether you want a mouth-watering $2 beef brisket burrito or just a Diet Coke for $0.50, it’s not hard to find a vendor who will sell it to you.  At least, it didn’t used to be hard.  Today?  Good luck.

In the fall of 2009, El Paso made it illegal for mobile food vendors to operate within 1,000 feet of any business that sells food—including restaurants, grocers and convenience stores, essentially turning El Paso into a No-Vending Zone.  Around the same time, it began aggressive enforcement of a restriction making it illegal for vendors to park and wait for customers to show up.  Instead, they just have to hope that customers will happen to see them driving and flag them down.  Combined, these new restrictions threaten the very existence of El Paso’s vending community.

But a plucky group of women is fighting back.  Yvonne Castaneda, Maria Robledo, Martha Avila, and Michelle Rodriguez own food trucks in El Paso.  Collectively, they have been vending there for over two decades.  Vending is their livelihood and their primary source of income, and they are not going to let the city take it away from them.

The Constitution doesn’t allow the government to pick winners and losers in the marketplace.  And nakedly protectionist laws like El Paso’s are nakedly unconstitutional.  That is why Yvonne, Maria, Martha, and Michelle are suing El Paso in federal court.  They are not asking for special privileges or a bailout.  They are only asking for a chance to compete fairly in the marketplace.

 

Street Vendors: Part of the Fabric of American Life

 

 

Street vending has been a part of the American economy since as early as the 17th century.[1] Today’s vendors are a diverse group of businesspeople, selling both from mobile and fixed locations.  They are immigrants, minorities, ex-professionals, men, women, retirees and young entrepreneurs building new businesses.[2]

In 2007, there were over 760,000[3]vending businesses nationwide with revenues in excess of $40 billion.[4] In the El Paso metropolitan area alone there were 1,790[5] non-food vending businesses and over 97% of these were run by self-employed individuals.  These El Paso businesses contributed over $29 million[6]to the local economy.[7]

Street vendors offer a number of benefits to their communities.  Vending is a potential solution for unemployment.  Individuals who cannot otherwise find work are able to become self sufficient by selling goods in public areas.[8]istorically, cities supported this tactic of addressing unemployment. The City of Chicago, for example, once stated in a formal report that if financial requirements on street vending were loosened it would be a good way to ease high unemployment.[9]

Vending also offers entrepreneurial opportunities to those on the first rung of the economic ladder.  This is especially true for minorities and immigrants often shut out of starting traditional businesses due to complicated, costly, and ever-expanding government regulations.[10] These entrepreneurial roles offer the possibility of upward mobility to individuals who otherwise have limited prospects for advancing economically.[11]

In addition to improving their own quality of life, vendors improve the lives of their customers, especially in communities of modest means.  Vendors provide goods and services to areas underserved by traditional retail outlets[12] and carry specialty products favored by specific ethnicities which cannot be found in retail stores.  As a result, they significantly increase the variety of goods available to those in minority communities and low-income neighborhoods.[13] Furthermore, vendors become “eyes on the street”[14] safeguarding areas from crime, thereby improving the quality of life in their communities.

Today, stories celebrating street vendors are everywhere.  Austin, Texas, just hosted its first “Gypsy Picnic Trailer Food Festival,” an event devoted entirely to mobile vending.[15] In New York City, an eagle-eyed vendor is credited with alerting police to a suspicious vehicle that turned out to contain a car bomb.[16] The Economist recently observed that in 2011, “some of the best food Americans eat may come from a food truck.”[17] The Food Network even has a show devoted to vendors called The Great Food Truck Race.[18]

 

Welcome to El Paso Texas: A Vending-Free Community

 

Despite the love that vendors receive from the media and their customers, some cities seem to view vendors as a threat to brick-and-mortar businesses, and they are responding by making it difficult or impossible for vendors to keep operating.

The city of El Paso does not seem to want vendors to operate there at all.  El Paso passed Ordinance No. 17162 on August 11, 2009, establishing new regulations targeting “mobile establishments” operating in the city.[19] Under the new law, it is illegal for a mobile vendor to operate within 1,000 feet of any restaurant, grocer, or convenience store.[20]There are many hundreds of such businesses in El Paso, each now with an invisible 1,000-foot circle around it where vendors are not welcome.  Where can vendors now operate legally in El Paso?  Virtually nowhere.

The city of El Paso has effectively become a No-Vending Zone.

In addition to the 1,000-foot separation requirement, El Paso also prohibits mobile vendors from parking and awaiting customers.[21] Thus, a vendor cannot park in one spot for an hour and conduct a steady lunch service.  Instead, she must keep driving constantly unless a customer happens to see her and flag her down; once the customer leaves, the vendor must be on the move again.  The enforcement of this restriction means that vendors spend lots of time driving, but very little time serving customers.

Violations of either restriction carry fines of up to $2,000.

Of course, vending within 1,000-feet of a restaurant, grocer, or convenience store presents no health or safety risks.  Neither does being parked at a curb during the lunch rush.  That is because the new law is not about protecting the public health or safety.  It is about protecting brick-and-mortar restaurants from competitors who have adopted a different business model.  Tellingly, El Paso’s advisory board for the new ordinance included the president of the restaurant association and many other restaurant representatives.[22]

 

Four Entrepreneurial Women, One Shared American Dream

 

Yvonne Castaneda was born and raised in El Paso.  After navigating the regulatory red tape of paperwork and inspections, Yvonne became a licensed mobile food vendor and began vending out of her retrofitted-van.  Her vending business—named Destiny’s Ice Cream and Snacks after her daughter—is how she supports her family.  Over the past five years, her vending business has steadily grown one customer at a time.  She has worked hard to develop an attractive menu, educate herself about entrepreneurship, study food handling, and keep her van in good condition.  Yvonne’s business was thriving until the city of El Paso passed its 1,000-foot proximity restriction last fall, and began prohibiting her from remaining at the curb unless customers were present.  “It has gotten to the point where I’m concerned about being able to pay my bills,” says Yvonne.  “I find myself constantly looking over my shoulder just because I might be too close to a restaurant.”  City inspectors have cited Yvonne multiple times and effectively pushed her out of areas where she has vended for years.

Always viewing her glass as half full, Maria Robledo’s perseverance and entrepreneurial spirit has been the key to her success.  Maria came to the United States twenty-two years ago to make a better life for her and her son.  She reached her goal: her son is now a soldier in the U.S. Army and her vending business is now her full time job.  But achieving that goal was not easy.  As a young immigrant, Maria first worked as a maid and began learning English.  She got the idea to begin vending years ago while watching her son sell packs of gum at a neighborhood park.  What started as a lesson on the supply and demand of gum blossomed into a mobile food vending business, with a truck full of prepackaged foods, candy, and drinks.

By maintaining consistent routes and a steady schedule, Maria has been able to grow her business and maintain a loyal customer base.  Since the passage of the new vending restrictions, however, city of El Paso inspectors have repeatedly staked out Maria’s vending route, waited for her to arrive, and cited her for waiting at the curb in between customers.  They have also cited her multiple times for vending within 1,000-feet of a restaurant or convenience store.  “I’m just trying to make a living,” says Maria.  “I pay taxes, I have a license, and I don’t think I’m doing anything wrong.”

Martha Avila and her daughter Michelle Garcia begin each day at 4:30 a.m.  In a commercial kitchen, this mother-daughter team prepares breakfast burritos for the hungry customers on their morning routes.  Mobile food vending has provided Martha the means to support a household, while helping Michelle afford the ever-increasing cost of college. Their loyal customers include retirement home residents, medical staff, and construction workers.  By focusing on their customers, these two entrepreneurs have been able to consistently grow their business since they began vending three years ago.  But, instead of standing by their side and rewarding entrepreneurship, the city of El Paso has passed laws aimed at pushing Martha and Michelle out of business, repeatedly issuing citations to this mother-daughter team for both the 1,000-foor proximity restriction and for parking and awaiting customers.


The Right to Earn an Honest Living:  Legal Claims

 

In defending the economic liberty of mobile food vendors in El Paso, Yvonne, Maria, Martha, and Michelle’s fight goes to the very core of our cherished constitutional right to earn an honest living free from unreasonable government interference.  These four entrepreneurs want nothing more than the opportunity to run their mobile food vending businesses without being run out of town by their own government.

The 14th Amendment prevents the government from arbitrarily interfering with citizens’ ability to earn an honest living in their chosen occupation.  Under the Due Process and Privileges or Immunities clauses, the government may only restrict these four mobile vendors’ right to run their businesses when there is some “rational basis” for that restriction.  To demonstrate that rational basis, the government must show a reasonable connection between the restrictions in question and some legitimate public purpose.  Forcing mobile food vendors 1,000 feet away from restaurants in El Paso—and prohibiting vendors from even parking to await customers—serves no legitimate public purpose.  To the contrary, it is economic protectionism at its worst.

Tragically, the demise of economic liberty began almost as soon as it achieved its greatest reach.  After the Civil War, emancipated slaves counted economic liberty as among the most crucial of their new civil rights.  To protect entrenched white businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens by heavily regulating entry into trades and business.  The national government tried to curtail these abuses by enacting the Civil Rights Act of 1866 and the 14th Amendment to the U.S. Constitution, both of which sought to protect the economic liberty of all Americans by forbidding states from abridging the “privileges or immunities” of American citizenship.

But in the 1873 Slaughter-House Cases, a sharply divided U.S. Supreme Court read the Privileges or Immunities Clause out of the U.S. Constitution by a mere 5-4 vote.  That decision gave states carte blanche to enact shameful Jim Crow-era laws restricting economic opportunities for black Americans.  In addition to oppressing their black citizens, the states also used their now-unchecked regulatory power to protect all sorts of entrenched interests and interfere in otherwise honest enterprise.  Essentially, although it is hardly known by the public, the Slaughter-House Cases ushered in our modern Nanny State under which government no longer feels restricted from imposing arbitrary or irrational restriction after restriction on businesses nationwide.

How bad has the problem grown?  One need look no further than the city of El Paso’s effort to use its police power to provide economic protection to one group of competitors, by pushing another group out of town.  This restriction has nothing to do with government’s legitimate function of protecting the public’s health and safety.  It is arbitrary.  It is abusive.  It is irrational.

 

A National Initiative to Defend Street Vendors

 

El Paso is not the only city that has decided to pick on street vendors.  Many other cities—like Baltimore, San Antonio, and Louisville— also engage in economic protectionism by preventing mobile food vendors from operating near brick-and-mortar restaurants.[23] Just as in El Paso, cities like Fresno, California, Memphis, Tennessee, and Washington D.C. limit the ability of vendors to stop and wait for customers.[24] Elsewhere, other protectionist restrictions, such as banning vendors from whole areas of town, preventing them from operating near sporting arenas, or limiting the range of products they can sell, make it difficult for street vending businesses to survive.[25]

In response to this anti-competitive array of laws lined up against street vendors, the Institute for Justice is helping them fight back. The launch of this case against El Paso marks the beginning of the Institute’s National Street Vending Initiative, a nationwide effort to vindicate the right of street vendors to earn an honest living by fighting unconstitutional vending restrictions in courts of law and the court of public opinion.  In the coming year, IJ will be filing other cases across the country challenging such restrictions, and it will help street vendors oppose attempts to shut them down through the use of unconstitutional and protectionist legislation.

 

Litigation Team

 

IJ Texas Chapter Executive Director Matt Miller will lead the litigation team, assisted by co-counsel Arif Panju from the Institute for Justice Texas Chapter.  Headquartered in Austin, IJ-TX litigates statewide for economic liberty, private property rights, educational choice, freedom of speech, and other vital liberties secured by the United States and Texas Constitutions.

The Institute for Justice has scored victories for entrepreneurs across the nation including:

 

  • Craigmiles v. Giles—This IJ suit led a federal court to strike down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the 6th U.S. Circuit Court of Appeals in 2002 and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.

 

  • Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.

 

  • Mitz v. Texas State Board of Veterinary Medical Examiners—In 2010, IJ defeated the Texas veterinary board’s three-year attempt to put horse teeth floaters out of business.  Floating is the routine filing down of small points growing on horse teeth.  Although individuals have floated horses’ teeth for decades, the Texas vet board abruptly changed its policy in 2007 to require floaters to be licensed vets—or work for one—and sent cease and desist letters to non-vet entrepreneurs.  The court ruled that the vet board’s abrupt change in policy, without seeking public input or going through proper rulemaking, violated the Texas Administrative Procedures Act.
  • Ricketts v. City of New York—In 1999, IJ helped commuter van operators fight a public bus monopoly that would not allow vans to provide their service in underserved metropolitan neighborhoods in New York City.

 

  • Cornwell v. California Board of Barbering and Cosmetology—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders.

 

  • Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ also helped break open government-sanctioned taxicab monopolies in Indianapolis, Cincinnati and Minneapolis.

 

For more information, please contact:


Bob Ewing

Assistant Director of Communications
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA  22203

(703) 682-9320

bewing@ij.org



[1] Devlin, Illegibility, Uncertainty and the Management of Street Vending in New York City, Address at the University of California-Berkeley Breslauer Symposium (April 14, 2006).

[2]Bromley, Street Vending and Public Policy: A Global Review, INTERNATIONAL JOURNAL OF SOCIOLOGY AND SOCIAL POLICY,  20 (2000), no. 1/2: 1-27; Jones, Street Peddlers as Entrepreneurs: Economic Adaptation To An Urban Area, URBAN ANTHROPOLOGY, 17 (1988), no 2-3:  143-170; Martinez, Victor, Eats to go: Food truck craze spreads to El Paso, EL PASO TIMES, September 15, 2010.  Accessed November 29, 2010: http://www.elpasotimes.com/living/ci_16075092; Associated Press, Truck foodies keep their wheels as they open shops, ABC NEWS, July 30, 2010. Accessed November 29, 2010: http://abcnews.go.com/Health/wireStory?id=11289977; Stone, Emily, A hot job in a tough market, CHICAGO TRIBUNE, April 23, 2010.  Accessed November 29, 2010: http://articles.chicagotribune.com/2010-04-23/news/ct-x-c-hot-dog-school-20100423_1_hot-job-students-tough-market.

[3]This number excludes those working in non-employer food related vending occupations due to limitations of U.S. Census data.
[4]U.S. Census Bureau, “2007 Non-Employer Statistics: United States , NAICS 45439, Other Direct Selling Establishments.” Accessed January 11, 2011: http://censtats.census.gov/cgi-bin/nonemployer/nonsect.pl.

U.S. Census Bureau, “2007 Economic Census: United States , NAICS 722330, Special Food Services,” and “2007 Economic Census: United States , NAICS 45439, Other Direct Selling Establishments.” Accessed January 11, 2011: http://www.census.gov/econ/census07/.

[5] This number excludes those working in all food related vending occupations due to limitations of U.S. Census data.

[6]This number is likely to be significantly higher.  Revenue amounts of 40 firms were excluded from reporting due to confidentiality concerns.

[7]U.S. Census Bureau, “2007 Non-Employer Statistics: El Paso, NAICS 45439, Other Direct Selling Establishments.” Accessed January 11, 2011: http://censtats.census.gov/cgi-bin/nonemployer/nonsect.pl.
U.S. Census Bureau, “2007 Economic Census: United States , NAICS 45439, Other Direct Selling Establishments.” Accessed January 11, 2011: http://www.census.gov/econ/census07/.

[8]romley, supra note 2.

[9]City of Chicago; Chicago municipal markets commission, “Preliminary report to the mayor and alderman of Chicago,” Chicago, April 14, 1914.

[10] Cross, Street Vendors, Modernity and Postmodernity: Conflict and Compromise in the Global Economy, International Journal of Sociology and Social Policy, 20 (2000), no. 1/2: 30-52.

[11] Bromley, supra note 2.

[12] Jones, supra note 2.

[13] Austin, An Honest Living: Street Vendors, Municipal Regulation and the Black Public Sphere, The Yale Law Journal, 103 (1994), no. 8: 2119-2131.

[14] Jacobs, The Death and Life of Great American Cities, (New York: Vintage Books, 1961), 36.

[15]Wood, Virginia B., Gypsy Picnic Trailer Food Festival, Austin Chronicle, November 5, 2010.  Accessed December 28, 2010: http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A1107804.

[16]Murray, Michael, Times Square Car Bomb Scare: Hero Vendors, ABC News, May 3, 2010.  Accessed December 28, 2010: http://abcnews.go.com/WN/times-square-vendors-vigilant-eye-crossroads-world/story?id=10545047.

[17]Trucking Delicious, The Economist, November 22, 2010.  Accessed December 28, 2010: http://www.economist.com/node/17493279.

[18]The Great Food Truck Race, FoodNetwork.com, http://www.foodnetwork.com/the-great-food-truck-race/index.html (last visited December 28, 2010).

[19] El Paso, Tx., Mun. Code § 9.12.800.

[20] El Paso, Tx., Mun. Code, § 9.12.800(F).

[21] El Paso, Tx., Mun. Code, § 9.12.800(D).

[22] El Paso, Tx., City-County Health and Environmental District, Minutes of Meetings of Texas Food Establishment Rules-Chapter 9.12 Review Committee (May 14, 2007) (on file with Institute for Justice).

[23] Baltimore Code Art. 15 § 17-24(a); San Antonio City Code Ch. 13, Art. IV, § 13-63(a)(10); Louisville, KY Code of Ordinances tit. XI, Ch. 115, § 115.360(C).

[24] Fresno, California Code of Ordinances Ch. 9, Art. 11, § 9-1107(f); Memphis, Tennessee Code of Ordinances tit. 9, Art. 3, § 9-52-70(F)(stating that [a] huckster's vehicle shall be kept in motion except when making sales”); D.C. Mun. Reg. tit. 24, § 516(1).

[25] See Chicago City Code tit. 4, Ch. 244, § 140 (prohibiting peddling within the “Central District” and other areas); Kansas City, Mo City Code Ch. 50, Art. XI, § 50-454(a) (prohibiting vending in various locations throughout the city); Chicago City Code tit. 4, Ch. 244, § 150 (prohibiting the peddling of flowers upon the public way); Ft. Worth Code of Ordinances Ch. 20, Art. IV, § 20-173(b)(5) (permitting residential pushcarts to sell only frozen ice cream and frozen popsicles); Jacksonville, FL Code of Ordinances tit. 6, Ch. 250, § 250-117(C) (prohibiting vending or peddling in area surrounding Jacksonville Municipal Stadium); San Antonio City Code Ch. 16, Art. IX, § 16-240(a) (prohibiting vending in the public right-of-way or on city-owned property in the area surrounding the AT&T Center).


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