National law firm files suit against Carolina Beach for restrictive food truck laws

Food truck owners explained their lawsuit, which is being taken on pro-bono by a self-described Libertarian law firm.

Plaintiffs as well as their attorneys held a press conference in Downtown Wilmington Tuesday (Port City Daily/Michael Praats)
Plaintiffs, as well as their attorneys, held a press conference in Downtown Wilmington Tuesday. (Port City Daily/Michael Praats)

CAROLINA BEACH — The Institute for Justice, a national law firm self-described as the national law firm for liberty, has filed a lawsuit against the Town of Carolina Beach and its Town Council on behalf of several food truck owners in the Wilmington area.

The lawsuit is in response to Carolina Beach’s restrictive ordinance, passed in April, that moved to allow food trucks to operate in the town – but only if the truck was attached to a brick and mortar restaurant already operating in municipal limits.

Related: Carolina Beach approves food trucks — with restrictions


On Tuesday morning, Managing Attorney for the Institute for Justice Justin Pearson along with several local food truck owners, met at the courthouse steps for a press conference to announce the lawsuit.

Michelle Rock of T’Geaux Boys, Aaron and Monica Cannon of A&M’s Red Food Truck, and Harley Bruce of Poor Piggies all are the plaintiffs in the case.

Managing Attorney for the Institute for Justice Justin Pearson announces a lawsuit against the Town of Carolina Beach and its Town Council on behalf of several food truck owners in Wilmington on Tuesday morning. (Port City Daily photo | Mark Darrough)
Managing Attorney for the Institute for Justice Justin Pearson announces a lawsuit against the Town of Carolina Beach and its Town Council on behalf of several food truck owners in Wilmington on Tuesday morning. (Port City Daily photo | Mark Darrough)

A libertarian law firm

The Institute for Justice (IJ) is a self-described libertarian law firm that represents clients around the country but — unlike most law firms — the group does not sue for money and only takes specific cases related to specific freedoms.

The Institute for Justice also does not charge its clients for its services.

“The Institue for Justice is the national law firm for liberty. We don’t sue for money; we don’t charge our clients anything. We file constitutional challenges across the nation representing individuals whose constitutional rights have been violated,” Pearson said.

The firm has brought more than 200 different cases to court including five to the Supreme Court.

According to the law firm’s website, “IJ has litigated over 200 cases, including five before the U.S. Supreme Court. Of those five cases, IJ won four of the cases before the Supreme Court and won the fifth case (the Kelo eminent domain case) in the court of public opinion.”

The case at hand

Three different food truck owners have filed a suit against the Town of Carolina Beach (Port City Daily/Mark Darrough)
Three different food truck owners have filed a suit against the Town of Carolina Beach. (Port City Daily/Mark Darrough)

According to court documents, the lawsuit filed against the town has several purposes including vindicating business owners who have been kept out of the town and ruling the town’s regulations unconstitutional.

This lawsuit seeks to vindicate the right under the North Carolina Constitution to earn an honest living free from protectionist government restrictions.

The plaintiffs are asking a judge to rule the town’s restrictive ordinances are in violation of the state constitution, grant a permanent injunction preventing the town from enforcing the restrictive ordinances, the payment of $1 to plaintiffs for harm caused, and an award of the costs incurred by plaintiffs for pursuing the action.

The motion was filed in the New Hanover County Superior Court on Tuesday morning; it is not yet known when the case will be heard.

Johanna Talcott, also a representative of the Institute for Justice said, “(t)he North Carolina Constitution specifically prohibits this sort of economic protectionism. When the town began drafting its food truck ordinance, it sought input from local restaurants. And their biggest concern was competition, especially from outsider food trucks coming to the town from areas like Wilmington and other neighboring towns … The Government is not allowed to pick economic winners and losers.”

The Town of Carolina Beach’s ordinances have never been particularity welcoming to food trucks and, prior to the change in April, the town was even more restrictive of which trucks could operate in its borders.

When the town decided to open up restrictions to allow food trucks to operate more easily local business owners were concerned with the increased competition the food trucks would add to the island. That is why the town’s Planning and Zoning Board first included the requirement that only current businesses in Carolina Beach could operate a food truck in town.

But according to Town Councilman Steve Shuttleworth during the April council meeting, not everyone he spoke with was concerned with the added competition.

“I would tell you, having talked to some of the restaurant owners in town, they’re not overly concerned about having non-brick-and-mortar people come across the bridge … I was interested when (Assitant Town Manager) Ed Parvin put together this report and they had 28 communities, 21 of them allow food trucks … out of that 21 we would be the only community that requires you have a brick and mortar,” Shuttleworth said.

The rational behind the restrictions for the Planning and Zoning Board were stated by Planning Board Member Deb LeCompte during a January discussion on the topic.

“I spoke with a restaurant owner just last night … and he’s on the boardwalk, he struggles to stay open in the off season as it is. He still has to pay his rent, he still has to pay his utilities, and he still has to pay his employees,” LeCompte said. “I think if we just allow anybody to come over that bridge with a food truck now we’d be stepping on the toes of people who are invested in the community.”

According to the lawsuit, “the brick and mortar requirements draw an illegitimate, arbitrary, and irrational distinction between food trucks that are owned by people who have owned a restaurant in Carolina Beach for at least one year … Under the brick and mortar requirement, whether a food truck may operate in Carolina Beach does not turn on the owner’s ability to provide legal and safe food to willing customers.”

The plaintiffs

Plaintiffs as well as their attorneys held a press conference in Downtown Wilmington Tuesday (Port City Daily/Michael Praats)
Plaintiffs, as well as their attorneys, held a press conference in Downtown Wilmington Tuesday. (Port City Daily/Michael Praats)

The owners of several food trucks have been critical of Carolina Beach’s restrictive laws regarding their operation in town before the new law was passed.

Prior to April, the town did not even have a code written to accommodate food trucks in town.

Related: Food truck owners say Carolina Beach is restricting their businesses

“We don’t want to compete with anybody, we just want to be able to be doing the same thing the restaurants are doing: serve the customers, serve our neighbors, serve the islanders, and let it be pleasurable for everybody,” Rock said. 

It’s not just about the food truck owners though, for Harley Bruce, owner of Poor Piggies, it’s also about what the people want, and that means more options and food trucks.

Monica Cannon, co-owner of A&M’s Red Food Truck, was optimistic about the lawsuit.

“I’m hoping for a great change. I’d like to see a lot of food trucks get into Carolina Beach. And to benefit the breweries out there that don’t have another food option. People are looking for something different,” Cannon said. “It’s why we went into this business –- so we could have a traveling restaurant, so we can travel to where the people are, where the needs are.”

Port City Daily reached out to Town Council members as well as the Town Manager of Carolina Beach for comment but since officials have not looked over the lawsuit fully, they refrained from making a statement at this time.


Court case against Carolina Beach by Michael James on Scribd

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