DOWNTOWN — A Cook County judge ruled Thursday that a lawsuit against the city's food-truck ordinance can proceed.
Judge Peter Flynn said the effect of the city's ordinance, which forbids food trucks from setting up shop within 200 feet of an established restaurant, appeared to be to "exclude food trucks from the entire Loop and then some."
Flynn also ruled that the suit against the city's requirement that food trucks have Global Positioning System equipment would proceed.
He dismissed a third count in the suit charging the ordinance violated equal-protection statutes. The judge ruled there were legitimate differences between food trucks and so-called brick-and-mortar restaurants.
"We're excited it's going forward," said Kristin Casper of the Schnitzel King, one of the food trucks that filed the suit.
Laura Pekarik, of Cupcakes for Courage, was cheered by the judge's request for a map showing the effect of the 200-foot restriction on where food trucks can operate. "It pretty much does block us out of the Loop," she said.
"This is a big win, make no mistake about it," said Bert Gall, an attorney for the Institute for Justice, which is handling the case on behalf of Casper and Greg Burke, Schnitzel King owner, as well as Pekarik. "We get a chance to show this was protectionist legislation."
City attorney Andrew Worseck said the ordinance was designed to "prevent economic harm to existing businesses" and that the 200-foot ban encouraged food trucks to "serve underserved areas of the city." He said the GPS requirement was necessary for "food-safety provisions," to allow city inspectors to locate food trucks.
"We're trying to strike a balance," he said, adding that it's a "policy decision" voted on by the City Council and that the suit should be dismissed "to let the city go about its business."
Institute for Justice attorney Robert Frommer countered that the "proximity restrictions" served largely to inhibit competition and that the GPS requirement was intended to enforce it. He cited the U.S. Supreme Court's decision last year in the Jones case on the unconstitutionality of the government using GPS data.
"It's absolutely a search," he said. "It's the government's burden to prove that a search is reasonable."
He said many cities with larger food-truck fleets than Chicago's monitor trucks without benefit of GPS.
Flynn ruled that, while the city could move to ban trucks entirely, "that doesn't mean any regulation is OK." He added the city couldn't be "capricious ... within a context of fairness."
Flynn took issue with the ordinance's definition of a restaurant to include convenience stores like 7-Eleven.
"Let's get real," he said, adding it was "pretty much excluding food trucks from fairly big swaths of the city."
He was also receptive to arguments on how GPS "could be misused" by the city, for instance by monitoring a food truck that might cater a fundraiser for political foes of the mayor or aldermen. He wanted to know "how the city proposes to protect against misuse of the data."
He dismissed only the equal-protection element of the complaint, saying, "It only serves to muddy the discourse."
The judge set the next court date for Sept. 10 as the suit moves forward in Cook County Circuit Court. But he said he did not necessarily expect it to produce a long, drawn-out trial, adding the constitutional issues at play are fairly clear cut, an opinion echoed by Frommer.
"This is a simple case with simple facts," Frommer said, and now he'll be granted an opportunity to argue that case in court.
