Wednesday, February 02, 2011

El Paso's Attack on Street Vendors



"Should the city of El Paso, Texas, be allowed to turn itself into a No-Vending Zone in order to protect brick-and-mortar restaurants from competition? That's the question to be answered by a major federal lawsuit filed January 26, 2011 by the Institute for Justice and four El Paso mobile food vendors. The lawsuit launches a National Street Vending Initiative, a nationwide litigation and activism effort to vindicate the right of street vendors to earn an honest living.

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.

That is why four mobile venders teamed up with the Institute for Justice to file 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."

80 Comments:

At 2/02/2011 8:41 AM, Blogger Jet Beagle said...

I do not know the situation in El Paso, but I am generally opposed to street vendors.

As a retailer, I paid, through my rent and taxes:

- for the upkeep of streets and buildings;
- for police protection;
- for the schools and public services of my community;
- for the public parking near my business;
- for the liability insurance which covered accidents in front of my business; and much more.

Street vendors evade all of these costs.

The libertarian may argue that neither of us should have to pay for schools, police protection, etc. But the fact remains that brick and mortar vendors are forced to by law and rental contracts. Your so-called "honest" street vendors evade such laws and almost always trespass on the property which the rest of us have rented.

 
At 2/02/2011 9:08 AM, Blogger Paul said...

yuck, I have yet to see one of those creepy vans I'd eat from.

 
At 2/02/2011 9:41 AM, Blogger randian said...

Beagle, you're hallucinating. Street vendors pay sales taxes and liability insurance just like all restaurants do.

 
At 2/02/2011 9:54 AM, Blogger Jet Beagle said...

randian,

I am not hallucinating, sir.

Some street vendors may pay sales taxes, but the ones I'm referring to do not. They show up at our shopping centers, open the back of their trucks, and sell junk until we can get the police to run them off. Furthermore, street vendors of all sorts do not pay for liability insurance on the property they trespass on or their customers trespass on. They also do not pay the property taxes which pay for streets, parking, sewers, schools, and police protection. They do not have to pay for other city regulations we have to pay for, such as sign inspections.

 
At 2/02/2011 10:24 AM, Blogger randian said...

Beagle, if their customers like it, it's not junk.

If you don't like them not paying property taxes, complain about the taxes. If you don't like sign inspections, complain about the sign inspections. Sign inspections are government make-work, not valuable services.

If you think it's unfair, quit or start another business. Just because you chose a business with high overhead doesn't mean it's ok for you to demand your competitors be saddled with it too.

 
At 2/02/2011 11:10 AM, Blogger jcarroll1948 said...

The libertarian in me wants to support street vendors; however, reality forces me to agree with Jet Beagle. Street vendors may be licensed, taxed, insured, etc. in some places just like regular restaurants, but I am sure they are not properly regulated in others. Where they are operating on public property, trespassing on private property, selling food that may not be safe, etc., they should be fined and otherwise put out of business. All vendors should pay their fair share for the infrastructure they use.

 
At 2/02/2011 11:41 AM, Blogger Jet Beagle said...

The libertarian view should respect property rights. Street vendors do not respect such rights.

My landlord pays for the streets, sidewalks, and public spaces around his property. He pays for the protection of that property and for the protection of his customers, the tenants The street vendor does not pay for any of these. It's the free rider problem.


I do not understand why a libertarian would object to restrictions on free riders. Can someone please explain?

 
At 2/02/2011 11:45 AM, Blogger Jet Beagle said...

jcarroll1948,

I am not aware of any street vendors who are required to purchase liability insurance for injuries to their customers which occur on public property or on the property of others. They may purchase liability insurance for injuries resulting from the products they sell, or for injuries caused by driving their trucks. But I don't think they are liable when one of their customers slips on the sidewalk in front of my store. My landlord is liable, and he adjusts my rent accordingly.

 
At 2/02/2011 12:14 PM, Blogger geoih said...

Quote from Jet Beagle: "Furthermore, street vendors of all sorts do not pay for liability insurance on the property they trespass on or their customers trespass on."

Your arguments are all over the place. Are street vendors bad because of taxes, or liability insurance, or trespassing?

Who is forcing you to buy insurance? How does a street vendor trespass when they are on a public road? Maybe if you had private roads you wouldn't have a problem with street vendors.

It seems pretty simple to me. Brick and mortar vendors have paid their protection money to the state and now the state is running their competition out of town. It's no different than what the Mafia would do.

I think this is just an example of the ineptitude of city governments. A smart protection racket would find a way to get money out of the street vendors and then play them off against the brick vendors, while squeezing money out of both.

 
At 2/02/2011 12:54 PM, Blogger Jet Beagle said...

geoih: "Your arguments are all over the place. Are street vendors bad because of taxes, or liability insurance, or trespassing?"

Certainly didn't expect these comments from you.

Street vendors are free riders.

geoih: "Who is forcing you to buy insurance?"

In some cases, my landlord forces me to buy liability insurance. In other cases he buys it and includes the cost in my rent. In any case, my landlord is potentially partially liable for injuries on his property. Either the street vendor who parks in front of my business or his customer walks on that property.

geoih: "How does a street vendor trespass when they are on a public road?"

I didn't say they did. But most street vendors park on private property.

When street vendors use public property to sell their goods, they are not required to pay property taxes to maintain that property. All the brick and mortar businesses in the city are.

geoih: " Maybe if you had private roads you wouldn't have a problem with street vendors."

Perhaps. But we don't have private roads, and that's not going to happen any time soon.

I wouldn't have a problem with street vendors if:

- street vendors paid for the streets and other public services they consume; and

- street vendors and their customers stayed off of private property.

geoih: "Brick and mortar vendors have paid their protection money to the state and now the state is running their competition out of town."

That's crap. We pay for services which elected representatives of the people have decided we must pay. We have every right to demand that all vendors who take advantage of those services also pay.

Why do you describe the provision of and payment for public services such as police and streets as a "protection racket"?

 
At 2/02/2011 1:19 PM, Blogger morganovich said...

jet-

i think i see his point about your arguments being all over the place.

arguing that you buy insurance bu they don't is not a valid free rider argument, it's just a cost structure one akin to arguing that you have you hire union and they don't.

your sales tax argument has some merit, but if they are not paying it, then they are breaking the law and the situation is very clear and they can be fined or arrested, just as you would. if they do pay, then they are in the same boat with you and you have nothing to complain about.

this same situation prevails around trespassing. if they are on someone else's property, that has legal consequences, just as it would if you set up tables in front of the store next door. the law is clear, and everyone should be treated equally.

how then are they free riders?

you seem to also want to make a property tax argument, and i can see how their lack of need to pay rent and property tax makes you distressed about their cost structure, but finding low cost ways to provide goods is supposed to be a good thing.

you, with your bigger all weather space have considerable advantages over a street vendor as well.

if a man who lives in a city sits on a park bench, is he a free rider? why does he become one if he stands up and sells a hot dog? in both cases he is taking up public space, but in the latter, he is actually improving it from the perspective of his customers. if he picked up litter instead, you would not call him a free rider, so why does he become one for providing a different service that people value?

i don't really see how you make that jump.

how does occupying the same space but now providing a service make you a free rider?

it seems to me that the only valid criticism you have leveled is that many street vendors break the law, but as i said above, that's a very straightforward thing to deal with and the system is already in place to do so while treating everyone equally.

why do you feel that someone should need the government's permission to operate a business?

 
At 2/02/2011 1:25 PM, Blogger Mike said...

As a (very) small business owner, I can understand Jet's concerns about his business and his perceived unfair advantages of food carts. I'm sympathetic.
However, there should be a big difference in quality (customer base, comfort, bathrooms and so-on) between a real restaurant and a truck. Therefore, your customers should be very different in most cases, purely based on customer preference. If your place isn't any nicer than buying food from a truck and standing in a parking lot to eat, you may need to remodel.
I think you'd find commercial vehicles have to pay more on taxes to cover streets, they can't park legally on private parking lots without permission and food inspectors are really tough on these vendors.

If these trucks are "legal", they are being taxed just like the rest of us. If they aren't "legal" that's a different story and not the topic of the article.
Food safety isn't really an issue...as Anthony Bourdain says, "they don't stay in business by poisoning their customers."

Your problems are a far cry from those who now have the issue of selling the exact same product that a web-seller offers...web sellers don't have to pay for any b&m building costs, reducing their prices and can offer no sales tax to the buyer. Oh, and the purchaser never has to leave their home....nobody is trying to shut down Amazon.

For the sake of argument, if the vendors you hate leased-bought-owned-legally borrowed enough land to park their truck in an area close to your shop, would you still feel the same way? I'm guessing, yes...and that's why somebody called it a "protection racket".

 
At 2/02/2011 1:37 PM, Blogger Walt G. said...

It's kind of vague exactly which part of the U.S. Constitution El Paso is allegedly in violation of and what remedy the food vendors want the court to impose. Most of the information available is from press conferences and publications by the food vendors or their representatives, which are pretty one-sided and sensationalized. A link to the actual lawsuit would be extremely helpful, but I could not find one.

Are the food vendors claiming something in the Bill of Rights or U.S. Constitution allows them to sell their food wherever and whenever they want for free? They want to just drive down the road, pick a premium place to sell food that day, (maybe in the street in front of a restaurant), take the customers' money, and leave?

 
At 2/02/2011 1:40 PM, Blogger Jet Beagle said...

morganovich,

Rather than respond with one long reply, I'll break this up.

"arguing that you buy insurance bu they don't is not a valid free rider argument"

The customers of street vendors do not use just the street. They use sidewalks in front of my business. They use parking places in front of my business. My landlord's liability insurance does protect him from lawsuits resulting from falls and other injuries in front of his building. He includes the ocst of that insurance in the rent he charges me. When a street vendor sells goods in front of my business, he pays nothing towards the cost of that liability insurance. He also pays nothing for the right to do business on a well-traveled street. He is a free rider.

 
At 2/02/2011 1:45 PM, Blogger Jet Beagle said...

morganovich: " i can see how their lack of need to pay rent and property tax makes you distressed about their cost structure, but finding low cost ways to provide goods is supposed to be a good thing."

Please! All I'm saying is that they should have to pay property taxes just like my landlord pays. My landlord's property tax assesment is based on the value of his property. That valuation is very high because his property is in a high traffic, high visibility location.

The street vendor wants to use that high traffic, high visibility location without paying the taxes which are assessed on that location.

 
At 2/02/2011 1:48 PM, Blogger Jet Beagle said...

morganovich: " in both cases he is taking up public space, but in the latter, he is actually improving it from the perspective of his customers."

The city certainly has a right to designate some public spaces as retail locations and some as parks, free of retailers. Although some customers may desire the street vendors goods, not all do. Otherwise the elected representatives of the city would have placed no restrictions on such sales in public spaces - including roads.

 
At 2/02/2011 1:52 PM, Blogger randian said...

street vendors paid for the streets and other public services they consume

They do. They pay sales taxes on goods and services they buy. To pay for said streets they pay excise and sales taxes on the gasoline and auto parts they buy, just like every other driver does. They pay gross receipts and excise taxes on the insurance they purchase. They pay annual vehicle licensing fees.

 
At 2/02/2011 1:55 PM, Blogger Jet Beagle said...

morganoivich: "why do you feel that someone should need the government's permission to operate a business?"

Personally, I do not. But I think government can and should restrict WHERE businesses may operate. I also believe that government can and should collect taxes to support public services such as parks, streets, and police. I would prefer that sales taxes be the only form of taxation. But that is not the method chosen by the representatives of the electorate. If the government is going to charge me higher taxes in order to operate on a high traffic street, then it should charge all businesses who operate on that street.

 
At 2/02/2011 1:57 PM, Blogger Jet Beagle said...

Mike: "I think you'd find commercial vehicles have to pay more on taxes to cover streets."

I don't think so. Gasoline taxes and vehicle licenses generally pay for highways. Property taxes are generally used to pay for streets.

 
At 2/02/2011 2:04 PM, Blogger Jet Beagle said...

Mike: "if the vendors you hate leased-bought-owned-legally borrowed enough land to park their truck in an area close to your shop, would you still feel the same way?"

Of course not. There have been other bookstores nearby which competed with mine. There have been retailers of other products which competed for the dollars my customers used at my bookstores.

My complaint is not about vendors who offer the same products I offer. My complaint is about street vendors who:

- congest the streets without providing parking for themselves or their customers;

- consume public services which I must pay for while they do not;

- block the egress to and visibility of my business.

 
At 2/02/2011 2:07 PM, Blogger Walt G. said...

The U.S.Supreme Court has already ruled that the states have the power through the 10th Amendment to allow municipalities to enact ordinances forcing prevailing wage laws on employers. If a city has the Constitutional power to tell an employer how much to pay his workers (even above federal minimum wage), why wouldn’t the city have the same type of power to enact ordinances telling food vendors they can’t sell within 1000 feet of a fixed food establishment?

Just because a federal lawsuit was filed, does not mean it has any merit or any chance of winning. The fact that a press conference was held obviously shows the real aim of this lawsuit is to obtain public sympathy for the little guy being abused by the big, bad government—a huge and unpopular target. If the case had any meat, the Institute of Justice would have saved its argument to prove its case in court as it must instead of tipping its hand in the press. If you have to shout out how great you are to a crowd, you aren’t.

 
At 2/02/2011 2:12 PM, Blogger Mike said...

Hey Jet,
In the state of Texas (where I live) commercial vehicles are taxed and licensed (taxed again) differently than personal vehicles. They also require a different driver's license (more tax) to operate.

May I actually offer a potential solution?

Get with your landlord and a towing company who will come by your place for a free (or cheap) lunch/dinner on a daily basis.

Have the landlord allow you to put small tables on the sidewalk (for your customers only) which will extend your business on to the sidewalk.
Mark the parking spaces for shops only and the tow truck will GLADLY impound illegally parked cars without so much as a phone call since they're already there. The food truck won't be there for long unless he wants to work out a sublet.

I honestly don't want to argue with you and I really am sorry to hear about the problems you're having.

 
At 2/02/2011 2:22 PM, Blogger Jet Beagle said...

randian,

As I already commented, in most communities in this nation, street construction and maintenance is funded by property taxes on landowners. In many cases the cities issue municipal bonds for which specific property tax assessments are levide.

Gasoline taxes and vehicle licenses generally pay for highways. There are some cities which use wheel taxes and gasoline taxes are used for streets, but I think those are exceptions.

In many cities - I think most cities - commercial property owners are responsible for maintaining sidewalks in front of their buildings. I also know that many cities require the property developer to build the public sidewalks in front of his development.

 
At 2/02/2011 2:25 PM, Blogger Jet Beagle said...

Mike,

I sold my businesses two years ago. I'm not having problems right now. My comments are based on my experiences as a former retail owner.

I never really had a problem with street vendors. Every time one stopped in the parking lots or on the street in front of my business, I simply called the police. They always responded fairly quickly.

 
At 2/02/2011 2:36 PM, Blogger Mike said...

Interesting....so if you never had a problem, does anybody?
This is a great example of overblown "need" for more regulation and stifling business for no good reason.

 
At 2/02/2011 2:52 PM, Blogger Jet Beagle said...

Mike,

The street vendors in El Paso apparently have a problem. Because the law apparently allows them to operate in some public locations and not others, perhaps they have a case.

My businesses were located in private, high-traffic shopping centers. So the street vendors were either trespassing on our property or else interfering with egress.

 
At 2/02/2011 3:02 PM, Blogger morganovich said...

"When a street vendor sells goods in front of my business, he pays nothing towards the cost of that liability insurance. He also pays nothing for the right to do business on a well-traveled street. "

no, he is using a public street, just as you could. you are paying for retail space, not the street. you are conflating two ideas. he is likely paying property tax somewhere, even if just passed through as rent.

 
At 2/02/2011 3:10 PM, Blogger morganovich said...

"All I'm saying is that they should have to pay property taxes just like my landlord pays."

why? they do not have use of the property or the services that come with it (like sewage etc)

"Although some customers may desire the street vendors goods, not all do. "

i'm sure the same could be said about the neighbors to your retail establishment who dislike hearing your customers make noise and take up parking spaces.

you are making an asymmetrical argument. your criticism applies to you as well.

"But I think government can and should restrict WHERE businesses may operate. I also believe that government can and should collect taxes to support public services such as parks, streets, and police"

but none of this supports your anti street vendor position. public use land is public use land. why is someone's use of it suddenly restricted if they engage in commerce?

and the government does tax street vendors. they pay sales tax and often other fees. you are angry because they do not pay as much as you do. but they do not use as much as you do either. they are only there for a few hours. your building is there all day. they don;t have customers drive to see them, it's generally foot traffic. they don;t need parking spaces like you do. they don;t have sewer hookups or garbage pickup.

why should they pay what you do when they don't get what you do?

alternately, if they get such a sweet deal, maybe you should change your business model. i would be willing to be that you would not do it, but perhaps you should ask yourself why not given how good you seem to think they have it.

 
At 2/02/2011 3:10 PM, Blogger Mike said...

Jet,
I understand.
In your case, they were breaking a current law and were forced to move.
My guess is, if you wanted, you could have put them out of business with a small claims suit...they were clearly breaking the law and caused harm through loss of sales and time spent chasing them away.

If the city of El Paso doesn't want them in certain locations, fine...just explain why. Not a good enough reason to pass more regulation and put them out of business...this reminds me of "sex-offenders" who can't be within so many yards of a school...not many such places exists. Oh, except under a certain bridge in Florida...where they all live.

 
At 2/02/2011 3:57 PM, Blogger Jet Beagle said...

morganovich: "you are paying for retail space, not the street."

I am paying - or I was paying - for retail space on a particular street. That street was either paid for by the property developer ot by municipal bonds. Such bonds, in most cities, are repaid through property taxes.

FYI, most property owners are responsible for maintaining the sidewalks in front of their businesses. That includes cleaning of rubbish.

Look, you guys are smoing dope if you believe most cities are going to allow street vendors to set up and operate in front of commercial businesses. You can throw out all the libertarian crap you wish about freedom. But the truth is that commercial businesses have rights which are not going away.

 
At 2/02/2011 4:00 PM, Blogger Jet Beagle said...

Mike: "My guess is, if you wanted, you could have put them out of business with a small claims suit..."

I think lawsuits are the libertarian solution to a lot of issues. For me, it makes a lot more sense for cities to pass laws protecting the rights of property owners, and for the police rto enforce those laws.

 
At 2/02/2011 4:03 PM, Blogger Jet Beagle said...

morganovich: "i'm sure the same could be said about the neighbors to your retail establishment who dislike hearing your customers make noise and take up parking spaces."

I support zoning. My bookstore customers made very little noise. The parking spaces were owned and maintained by my landlord.

 
At 2/02/2011 4:07 PM, Blogger Jet Beagle said...

morganovich: "they don;t have customers drive to see them, it's generally foot traffic. they don't need parking spaces like you do."

I disagree. Many street vendors have drive by customers who definitely use the parking spaces in front of commercial businesses. The customers of such street vendors also impede egress.

There was very little foot traffic in the sections of cities where I operated. But there were definitely street vendors who tried to move in.

 
At 2/02/2011 4:09 PM, Blogger Jet Beagle said...

morganovich: "you are angry because they do not pay as much as you do."

Why do you think I am angry? My position on street vendors is winning all over the nation.

 
At 2/02/2011 4:15 PM, Blogger Jet Beagle said...

morganovich: "public use land is public use land. why is someone's use of it suddenly restricted if they engage in commerce? "

I know of no community in the U.S. where public use land means unrestricted use land. Do you?

Elected officials certainly have the right to decide how public lands may be used. I am in favor of severe restrictions on cmmercial use of such land. I do not wish to see our parks, zoos, schools, and common areas covered with vendors. I am confident that most Americans agree with me.

 
At 2/02/2011 8:16 PM, Blogger Benjamin said...

In Thailand, they have lots of push-cart vendors with great food. Bring it on, I say.

Yes, they pay less taxes. Yes, some store owners will lose business. Other people will move into the retail space, as ren ts are cut. It is anti-inflationary.

You know, everyone is for free enterprise, except for the special situation they are in.....

 
At 2/03/2011 1:26 AM, OpenID Sprewell said...

Good point, Benjie. I went to some college Objectivist meetings back in the '90s, despite never having read a word of Ayn Rand, and what struck me was how free market they were about every other profession, yet these engineering and English students would all want a govt copyright/patent IP bureaucracy to protect their precious work. ;) That's why I always find it amusing when some group appropriates rationality or objectivity to their side or names their magazine Reason, as the number of people who actually live up to that standard probably number on one hand. ;)

 
At 2/03/2011 7:04 AM, Blogger geoih said...

Quote from Jet Beagle: "Why do you describe the provision of and payment for public services such as police and streets as a "protection racket"?

Because it's a monopoly enforced at the point of a gun. If you don't pay for it, whether you want it or not, then the guns come out. They confiscate your property, your liberty, and if you still refuse to submit, your life.

There is a long history in this country of sedentary merchants using the state to suppress traveling vendors. It's simply a local version of the national tariffs used to 'protect' various politically connected industries.

 
At 2/03/2011 7:36 AM, Blogger Jet Beagle said...

Sorry, but it's about property rights. When I rent a retail place, I also rent the sidewalk in front of my business. By laws in most communities I have investigated, I'm required to keep it free of debris and keep it in good condition. Implicit in my rent is the egress of my customers.

If a street vendor sets up shop in front of my retail business, he is blocking my customers egress. His customers - especially if he is a food vendor - is likely to soil and litter the sidewalk I must maintain. As I see it, I have a right to protect that egress and protect the condition of the sidewalk I must maintain.

The street vendor is trying to gain the advantage - location - which I pay dearly for through my rent. The police are only protecting my property rights - the right to sell in a desireable location, which I have paid dearly for.

I do not understand why you guys see this as fair competition. I do not understand why you would permit street vendors to clutter the streets - which are not built and paid for with the intent that sales be made from them.

A community has a right to restrict - for safety reasons - where vendors may sell their goods. A community also has a right to designate public areas off-limits for commerce.

The El Paso situation is different - simply because the city permits street vendors in some public locations and not in others. In the communities I conducted business, street vendors could only sell their goods on private property where they had permission from the property owners.

 
At 2/03/2011 9:05 AM, Blogger Hydra said...

I come down with Jet Beagle on this. It is a property rights issue.

However, the community controls land use and there is a desire for this type of land use. Therefore the community has an obligation to alow for some safe and useful locations for this activity.

The street vendors should bid for the available sites with part of the proceeds rebated back to thier stationary competitors.

If Jet Beagle sells wallets and umbrellas and the like, then a street food vendor is not competition, an mayattract foot traffic to JBs store.

 
At 2/03/2011 10:03 AM, Blogger Walt G. said...

The community elected the officials who enacted the ordinance, so we have to assume they have the authority to make decisions like this on their behalf or they will be voted out of office. The state has the mandate to allow the city to enact the ordinance through the 10th Amendment of the Constitution. Do we really want the feds telling cities what they can and cannot do?

If the food vendors win, won’t I also have a right to pull my fifth-wheel trailer up in front of a business in El Paso (or anywhere else) and use their sidewalk for my patio and entertain friends/customers at will? My campgrounds are regulated by local laws, so why shouldn’t food vendors be regulated by local laws as well?

 
At 2/03/2011 11:37 AM, Blogger John said...

They're dealing with similar issues in Washington, DC, actually. (a couple links below).

The issues there are similar, but in DC the problem arises from a well-meaning program of the city's, which is trying to help street vendors (typically low-income Hispanic operations) prosper and, hopefully, eventually establish themselves as brick and mortar shops.

I think the idea is great, but so far, there's no evidence that the program is leading to its stated goal. The nearby restaurant owners raise relevant concerns about food quality and health regulation enforcement, and I appreciate their concern about being undercut by a city-subsidized market for street vendors.

I don't think it's in the city's interest or the neighborhood's interest to see restaurants closing as a result of this program. But instead of punishing street vendors, maybe they should enact some set of tax breaks for nearby, affected restaurants.

http://washingtonexaminer.com/local/2010/12/graham-negotiating-deal-between-adams-morgan-restaurants-street-vendors?quicktabs_1=1>

http://www.washingtoncitypaper.com/blogs/housingcomplex/2010/09/02/adams-morgan-restaurants-protest-weekend-latino-market-in-unity-park/

 
At 2/03/2011 1:27 PM, Blogger geoih said...

Quote from Jet Beagle: "Sorry, but it's about property rights."

Then why do you keep bringing up red herring arguments about insurance and taxes and free riding on city services?

In many places the property line is in the middle of the road between two parcels and the municipality has taken an easement for the road and sidewalk. I would agree that there are property rights issues here, if a vendor sets up shop in the road or on the side walk.

But there are plenty of locations in most cities where the municipality owns the road and sidewalk outright. Why should a street vendor have less access to these public locations simply because they are selling something?

What if a property owner rents out, or simply allows a mobile vendor to use their private property? Why should this be restricted just because the traveling vendor is mobile? This happens all the time, where a mobile vendor sells on the property of a construction site, or the parking lot of an office building.

Restricting or prohibiting vendors simply because they're mobile, and because the non-mobile vendors don't like them, is not a property issue.

 
At 2/03/2011 1:56 PM, Blogger Mike said...

I think everybody who is still commenting on this has missed one of Jet's posts:

"I never really had a problem with street vendors. Every time one stopped in the parking lots or on the street in front of my business, I simply called the police. They always responded fairly quickly."

What they were doing was ALREADY illegal and was handled as such.
Making every truck in Jet's town pay, which is what this story is about, would be idiotic.

 
At 2/03/2011 3:06 PM, Blogger Hydra said...

"....we have to assume they have the authority to make decisions like this on their behalf or they will be voted out of office."

================================

Regulated is one thing, regulated out of existence is another. Government has an obligation to protect minorities, and in this case street vendors appear to be the minority.

My suggestion allows (some) street vendors, uses market forces to regulate them (only the best will be able to bid the most for the avaialble spaces), and provides some compensation back to the bricks and morter stores for any supposed inconvenience.

Local government can use their authority to move the locations from time to time.

Besides the idea that the peoples control is to vote them out of office is a sham. some local governemtns are elected on rotating schedules so it can take decades to replace them. They may do a good job in other areas and get reelected inspite of citizen anger over this issue. As I pointed out, if the vendors are a minority, they probably can't swing enough votes to make a difference.

 
At 2/03/2011 3:09 PM, Blogger Hydra said...

"But instead of punishing street vendors, maybe they should enact some set of tax breaks for nearby, affected restaurants."

================================

Why pass the burden on to other taxpayers not affected by the issue. Let the vendors auction for the permission they want and use that money to compensate the other stores.

 
At 2/03/2011 4:16 PM, Blogger juandos said...

Hmmm, I got to say that in 'some' respects I can understand and appreciate jet beagle's problems here...

They're not insignificant...

I'm sure there must be a problem with hydra's solution since it sounds so common sense and fits the K.I.S.S. theory from where I sit: "Why pass the burden on to other taxpayers not affected by the issue. Let the vendors auction for the permission they want and use that money to compensate the other stores"...

None the less I do think beagle's first comment also indicates that people get the government they deserve...

 
At 2/03/2011 4:27 PM, Blogger Walt G. said...

Hydra and Juandos,

It would be interesting to see the actual lawsuit language and see which Constitutional right the Institute for Justice claims they can prove is being denied. All federal lawsuits are considered "major." Hyperbole and press conferences are not evidence that wins lawsuits. The case can only be in federal court for a federal law violation or Constitutional violation, and this seems like a local issue. Should Uncle Sam tell El Paso how they can regulate food vendors?

Pornography uses freedom of speech (1st Amendment) to be federally protected, and the Supreme Court ruled they can be zoned using distances from other establishments and other severe restrictions that limits their customers just as El Paso has done with the food vendors. As far as I know, there is no law that protects the right to sell tacos out of a vending truck. Do we really want one?

 
At 2/03/2011 5:18 PM, Blogger Ron H. said...

"Government has an obligation to protect minorities, and in this case street vendors appear to be the minority."

Hydra, I'm looking through my pocket copy of the US Constitution for this, and I can't find it. Can you help me? Where is it?

Is it part of a City Charter for the cities in question? I'm not at all familiar with that. Is that where it is?

You need to do better than that.

"Why pass the burden on to other taxpayers not affected by the issue."

Now THAT'S more like it! Good job.

 
At 2/03/2011 5:57 PM, Blogger juandos said...

Hey Walt G, I too would be interested in what is up...

RE: 'Hyperbole and press conferences are not evidence that wins lawsuits'...

Shouldn't be but I have to wonder if "Roe v Wade' wasn't exactly that...

"Should Uncle Sam tell El Paso how they can regulate food vendors?"...

Isn't that what the federal government (Democrats & Obama administration) trying to do now, stretch the commerce clause?

"As far as I know, there is no law that protects the right to sell tacos out of a vending truck. Do we really want one?"...

Well Walt G, on a city by city basis is one thing but do we need a 'national' law covering vendors working from vehicles, I don't think so...

 
At 2/03/2011 8:05 PM, Blogger randian said...

Let the vendors auction for the permission they want and use that money to compensate the other stores

Why should one business pay another for the right to compete with it?

 
At 2/03/2011 8:13 PM, OpenID Sprewell said...

The IJ has a breakdown of their case, looks like they're using the 14th Amendment, invoking the Slaughter-House cases and making the analogy to Jim Crow. The list of cases they've won at the end is certainly impressive, :) though I imagine it's like trying to plug holes in a bursting dike. Their case page should have more links and documents as time goes by and there's always Justia for more legal documents.

 
At 2/03/2011 10:04 PM, Blogger Hydra said...

Why should one business pay another to compete with it?

=======================

So the competition is even. One is paying for private space, and paying taxes for public space. The other is using said public space for free.

 
At 2/03/2011 10:11 PM, Blogger Hydra said...

Look in the writings of the founding fathers. I'm pretty certain that Thomas Jefferson, James Madison and many others warned against the tyranny of the majority. Failing that consider the civil rights movement. Failing that, consider that a basic reason for the existence of government is to protect the weak from the strong. Travelers from highwaymen. Kids from bullies, etc.

 
At 2/03/2011 10:19 PM, Blogger Hydra said...

If there is no law that prohibits selling tacos out of a truck, why would we want one?

What we should want is a law that maximizes total benefit.

Total Cost = Production Cost + External Cost + Government Cost.

Where benefits are negative costs. Therefore, minimize total costs.

 
At 2/03/2011 10:20 PM, Blogger Ron H. said...

Hydra,

"I'm pretty certain that Thomas Jefferson, James Madison and many others warned against the tyranny of the majority."

Absolutely. Democracy is a dangerous idea, and shouldn't be attempted.

"...consider that a basic reason for the existence of government is to protect the weak from the strong."

Ok, which is which in this case?

 
At 2/03/2011 10:24 PM, Blogger Ron H. said...

"What we should want is a law that maximizes total benefit."

Benefit for who, and, who can be the judge of what's best? Not everyone would agree on the answers to those questions.

 
At 2/03/2011 10:24 PM, Blogger Hydra said...

Thank you, juandos.

Basically, what I advocate is a market approach to regulating regulation.

It is a hard idea to sell. Liberals hate it because it depends on property rights and conservatives hate it because it concedes a use for regulation.

 
At 2/03/2011 10:31 PM, Blogger Hydra said...

In this case, government has an incentive to find enough spaces and the best spaces for vendors to operate, but not too many, or the auction revenues will fall. Storefront vendors will want to reduce their taxes, but not at the expense of excess competition. Mobile vendors know they can eliminate competition by bidding higher at the auctions.

Now, all the incentives are in the same direction: maximum overall benefit.

 
At 2/03/2011 10:54 PM, Blogger Ron H. said...

Hydra,

Government shouldn't be in the business of picking winners and losers in business. Just because your buddy in the White House does it, doesn't make it legitimate. You are still suggesting that street vendors should pay their competition for the privilege of doing business.

The call to "level the playing field" is in every instance a call to disadvantage your competition in some way. It has nothing to do with fairness.

 
At 2/04/2011 3:13 AM, Blogger Jet Beagle said...

geoih: "What if a property owner rents out, or simply allows a mobile vendor to use their private property?"

I have no problem with that. However, consider what happens when the city enacts laws requiring brick and mortar retail businesses to provide X number of parking spaces for every sq ft of space or every x linear feet of store front. If the property owner 300 feet away lets the food truck park on his property, then that property owner should face the same requirement for parking. Do you agree?

 
At 2/04/2011 3:24 AM, Blogger Jet Beagle said...

geoih: "Then why do you keep bringing up red herring arguments about insurance and taxes and free riding on city services?"

I do not see that as a "red herring". It's a different argument than the property rights argument.

My landlord is generally required by law to pay taxes on commercial real estate. He is usually required to carry liability insurance for injuries which are incurred on his property and on the sidewalk in front of his property.

Allowing street vendors to use public property for selling goods amounts to unequal treatment. Rather than the street vendor being liable for injuries to customers in front of his business, the taxpayers are on the hook. The street vendor who uses public property - or even tax exempt property - definitely free rides on public services which are funded through property taxes.

All I'm asking is that laws not favor some vendors over others. The obvious way to do that is to rent space to the street and mobile vendors. If there is sufficient demand for such rentals, the free market should be able to make such space available.

I cannot imagine why anyone here would favor a public, taxpayer funded solution over a free market private solution.

 
At 2/04/2011 3:28 AM, Blogger Jet Beagle said...

Ron H: "The call to "level the playing field" is in every instance a call to disadvantage your competition in some way."

I don't think so, Ron. The call to apply the same laws to consumers of public land that are applied to consumers of private land is a call to remove disadvantage.


I think you know that my preference is to prohibit private businesses from consuming public land. That is, allow private markets to solve the need for mobile vendors' space.

 
At 2/04/2011 6:48 AM, Blogger geoih said...

Quote from Jet Beagle: "However, consider what happens when the city enacts laws requiring brick and mortar retail businesses to ..."

And: "My landlord is generally required by law to pay ..."

It seems to me that the real problem is the armed protection racket (I mean city) arbitrarily extorting money from every productive person they can find. They force stationary producers to pay protection money and follow arbitrary rules or suffer violent consequences. They run mobile producers our of town under threats of violence.

I fail to see how being in favor of either coercive tactic is libertarian, nor do I see how lobbying for equal tyranny is. It's all still tyranny.

 
At 2/04/2011 7:37 AM, Blogger Jet Beagle said...

Geoih,

I do not consider the levy of taxes to provide for police protection, fire protection, street maintenance, parks, and many other public services to be "extortion". Perhaps you do.

I do not agree with laws which specify the number of parking places a retail business must provide. However, if such laws are enforced for some retainers, I ask that they be enforced for all retainers. Do you feel my argument is unreasonable?

 
At 2/04/2011 10:29 AM, Blogger juandos said...

"You are still suggesting that street vendors should pay their competition for the privilege of doing business"...

You know Ron H it seems to me that the vendors working from vehicles seem to me at least be getting something of a free ride from those who actually pay property taxes either directly or indirectly...

Mind you I'm only going from what I've observed and I have to wonder what part of the cost of the area infrastructure the vendors from vehicles are covering since they're not apparently paying the normal property taxes that brick and mortar vendors pay.

Am I missing something here?

Locally the 'lunch wagons' that come around to construction sites have to pass the typical inspector's eyeball test for cleanliness, etc but aren't saddled with any extra operating tax that any other vehicle their size is assessed...

They still pay the food licensing tag like a regular resturant though...

 
At 2/04/2011 11:14 AM, Blogger Walt G. said...

Thanks for the links Sprewell. The case was filed as a violation of 42:1983 Civil Rights Act. They have to prove they were deprived of one of their civil rights. This is a law that is usually used against unreasonable search and seizures by police or against school districts by black students.

Since there is no taco selling civil right, and the defendants are all female with Mexican names, it would seem the legal strategy would be to portray the problem as poor immigrant females against the big, bad, white, male government. The press conference would also seem to point in that direction.

It will be interesting to see whether the ruling allows the feds to tell cities how they can operate their central business districts. I might just want to sell watches out of my coat in front of jewelry stores when I retire or maybe pants and shirts out of a truck in front of our local Wal-Mart if I get that civil right.

Juandos,

We have a lunch wagon come into the factory every day. It's on private property, and it’s invited. I guess a lunch wagon could buy a lot in a business district and try to get zoning to sell from a vehicle there, but otherwise their business model requires parking their vehicle in a place they do not own, and I’m not sure anyone has a Constitutional right to do that. Gypsies were hated for many of the same reasons as the mobile vendors.

 
At 2/04/2011 11:26 AM, OpenID Sprewell said...

There's a simple solution for any complaint of unequal taxation: add up all the costs that supposedly aren't being paid by the mobile vendors' lesser taxes now, say for extra public parking or police or insurance, and levy a tax on the mobile vendors that would cover it. It's understandable that taxes and the law haven't caught up to the rise of these mobile vendors, as it's only with the recent rise of the internet and services like twitter that they've gone from marginal operations to real businesses. However, this El Paso ban is clearly just protectionism, making up an idiotic law to effectively put mobile vendors out of business. Personally, I prefer private streets and sidewalks, :) but for those localities that are more wedded to the status quo, a mobile vendor tax should take care of any supposed concerns about unfair taxation.

 
At 2/04/2011 11:43 AM, Blogger Walt G. said...

Sprewell,

It's not just taxation. Our health department plan review for food vendors requires access to customer hand-washing and bathroom facilities to be in compliance, which is waived because the facilities are provided within the required distance by the building owner who signs the waiver.

How do the El Paso mobile food vendors handle the sanitary requirements that the licensed restaurants probably have to provide? I doubt the restaurants they are parked in front of will sign a waiver.

 
At 2/04/2011 12:12 PM, Blogger randian said...

How do the El Paso mobile food vendors handle the sanitary requirements that the licensed restaurants probably have to provide?

Why should they have to? Whether the customer washes their hands isn't the vendor's problem. The vendor's only duty is to keep themselves disease free. B&M restaurants shouldn't have to provide bathrooms, if they don't want to.

 
At 2/04/2011 12:25 PM, Blogger Jet Beagle said...

Sprewell,
I like your suggestion somewhat, but I see no way to determine the appropriate tax. Landlords pay property taxes based on the value of the property. A highly visible retail proerty on a high traffic street will be valued very high, and the taxes will be high. What value can one place on a mobile unit which can park on streets of varying traffic.

Furthermore, why should we allow a mobile vendor to escape paying for the real estate consumed by his truck and his customers. When he parks on public property, he is consuming valuable property which would otherwise be available for other use. So we should require him to pay for that space. But why should the government be competing with private landlords?

As I see it, the only solution is for private landlord to make land available for lunch trucks - if any landlords desire to do so.

 
At 2/04/2011 12:52 PM, Blogger Walt G. said...

radian,

Whether they want to provide restroom or hand washing facilities or not does not change what the codes say it takes to be in compliance. Every jurisdiction is different, but BOCA is usually the starting point with the local health departments. If B&M restaurants have to provide such facilities, should mobile vendors have to provide them? If not, why?

 
At 2/04/2011 1:29 PM, Blogger randian said...

If B&M restaurants have to provide such facilities, should mobile vendors have to provide them? If not, why?

For the same reason mobile vendors shouldn't have to provide adequate heat and shelter.

 
At 2/04/2011 1:45 PM, Blogger Walt G. said...

randian,

B&M patio area don't provide heat or shelter either but they are within the specified distance. Our day fairs use hand sanitizer and porta-johns to meet the requirements.

 
At 2/04/2011 1:50 PM, Blogger Jet Beagle said...

Juandos,

I'm sure you're aware, but for the benefit of anyone else: lunch wagons at construction sites operate on private property. The property owners are paying taxes which help fund public services. So these mobile vendors are not free riders.

 
At 2/04/2011 2:09 PM, Blogger Ron H. said...

juandos,

My comment was in response to Hydra's ridiculous idea about the city auctioning space for mobile vendors to the highest bidder, then passing this money to the permanent businesses who were suffering from the competition. I explained that it wasn't an obligation of government to pick winners and losers in this manner, or to "level the playing field" to create more equal outcomes. I also objected to his erroneous notion that government has an obligation to "protect minorities" or "protect the weak from the strong".

I actually agree with JetBeagles complaint about street vendors blocking access to his business, but the El Paso 1000 ft. law is a different story.

In your example of a lunch wagon on a construction site, I imagine builders welcome these vendors, as it keeps workers on site instead of driving off somewhere to have lunch. But, what if the construction site is next to a food store, and within 1000 ft.?

 
At 2/04/2011 2:13 PM, Blogger juandos said...

"I'm sure you're aware, but for the benefit of anyone else: lunch wagons at construction sites operate on private property"...

jet beagle many times, most of the time they do except in cramped, high density urban areas...

I'm sure at one time or another you've seen a 'down in the city' construction site and the only room for the lunch wagon is parked up against what might be left of a curb...

Back in the mid ninties when the construction was finishing up on the indoor football stadium in downtown St. Louis, the only place the lunch wagons could park was literally on the street...

I've seen similer situations in downtown Chicago and Kansas City...

Hmmm, it just has me wondering is all...

 
At 2/04/2011 2:20 PM, Blogger juandos said...

"My comment was in response to Hydra's ridiculous idea about the city auctioning space for mobile vendors to the highest bidder, then passing this money to the permanent businesses who were suffering from the competition"...

Well Ron H I was thinking/guessing hydra was making that sort of suggestion so that it would lower the tax rates on everyone in business, not necessarily actually 'giving money' to one business or another...

"But, what if the construction site is next to a food store, and within 1000 ft.?"...

Choices and variety, its what makes America great...:-)

Actually Ron that's an interesting question...

One wonders what the local ordinance would say about it?

Who has the 'political clout' in that situation?

 
At 2/04/2011 2:53 PM, Blogger Ron H. said...

"One wonders what the local ordinance would say about it?"

Well, in El Paso, the 'roach coach' couldn't operate within 1000 ft. of the store, so couldn't service the construction site.

There are some really interesting issues here, and I don't have any really good answers, but some of the suggestions don't seem well thought out. I'm not sure how to value the public services a mobile vendor uses. It's impossible to prevent all free rider use. For instance, if I drive through your town, I'm using public streets, lighting, etc. I haven't paid for. I assume that if I needed them, the police or firepersons. you are paying for would respond to my call. If I park on the street in front of a business, I'm keeping a potential customer from parking there. All of this at no cost to me.

 
At 2/05/2011 3:17 AM, Blogger Jet Beagle said...

Ron H: " If I park on the street in front of a business, I'm keeping a potential customer from parking there."

It is true that a municipality cannot guarantee that all public spaces are used for the purposes for which they were provided. But where it can identify and prevent such uses, why shouldn't it?

It is very easy to prevent a vehicle from using for 8 hours a parking space intended for retail customer use. It is very easy to prevent vehicles over a certain size from using parking spaces designed for personal vehicles. It is very easy to restrict the use of public property to those activities for which the public has intended such property to be used.

Just because all free rider usage cannot practically be eliminated is no reason that we should allow every such usage.

 

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