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Food Trucks Claim Victory as Judge Tosses Loitering Charge

by ARLnow.com | February 4, 2013 at 2:55 pm | 1,117 views | 47 Comments

Food truck has its license inspected by police in Rosslyn (file photo)(Updated at 6:25 p.m.) Food truck owners are declaring victory after a successful showdown over a street vending ordinance in Arlington General District Court.

Currently, under Arlington County Code 30-9, food trucks are prohibited from vending on a public street for more than an hour in one spot. The enforcement of that portion of the Arlington County Code led to an outcry among food truck owners, who say it unfairly targets their business in order to protect brick-and-mortar restaurants.

Late last year, the Institute for Justice, an Arlington-based libertarian law firm, announced that it was taking up the case of Arlington food trucks as part of its National Street Vending Initiative, which seeks to break down legal barriers for street vendors. Today, that effort bore fruit.

Seoul Food truck serves up Korean cuisine (File photo)An Arlington County judge, at the request of prosecutors from the Commonwealth’s Attorney’s office, dismissed a loitering charge against Hyun “Anna” Shil Goree, co-owner of the Seoul Food truck. Goree was charged with the crime — a Class 1 misdemeanor punishable by up to a year in jail and a fine of up to $2,500 — after a police officer determined that she had not moved her truck “far enough” to comply with the law.

Last year Goree was fined $25 and $200 after pleading no contest to street vendor loitering charges in August and October. After being charged again in December, she decided to fight back, enlisting the help of the the Institute for Justice and the law firm of Gibson, Dunn, & Crutcher LLP. The charged was dismissed today via a nolle prosequi motion.

The Food Truck Association of Metropolitan Washington, which has spoken out against the Arlington ordinance, says the dismissal is a victory against an arbitrary law that’s “vague and open to different interpretations.”

“This case highlights the absurdity of treating what amounts to a parking violation as a crime on par with assault,” said Doug Povich, co-owner of Red Hook Lobster Pound truck and Chairman of the Food Truck Association. “The Food Truck Association hopes to work with the County in the months ahead to craft a food-truck law that serves the County’s residents and workers and keeps food trucks as a vibrant part of Arlington’s business community and streetscape.”

Arlington County spokeswoman Mary Curtius said the county is indeed working to change the ordinance.

“We realize that the 60-minute time limit is challenging for vendors and for customers, and we are working to change it,” Curtius said. “We hope to be bringing something forward in the Spring.”

Arlington Commonwealth’s Attorney Theo Stamos said she asked for the charges to be dismissed after consulting with the police department.

“I made the decision… in consultation with the police department and with the awareness that the current ordinance is very difficult to enforce,” she told ARLnow.com. “It’s difficult to enforce because it requires a police officer to watch a truck for an hour (or some other witness willing to come to court to testify to the fact that the food truck hasn’t moved in 60 minutes)… then there is the definition of ‘move’ that is also problematic. Does it mean an inch? A parking space? Around the block?”

“The officers were responding to requests from store owners to enforce the ordinance,” Stamos continued. “Unfortunately, the ordinance, as written, is rather unclear and a criminal statute is always construed against the Commonwealth and in favor of the defendant, which is as it should be.”

Stamos said it’s “unlikely” that her office will prosecute additional loitering cases against food trucks until the County Board updates the ordinance.

The full press release from the Food Truck Association, after the jump.

File photos

An Arlington County judge today granted the Commonwealth’s Attorney’s motion to nolle prosequi in its case against the Korean fusion food truck Seoul Food, completely dismissing the case.

Anna Shil, who owns Seoul Food with her husband JP Goree, faced the possibility of up to a year in jail and a fine of $2,500. Her alleged crime? Not moving her truck “far enough.”

Seoul Food has been serving Arlington residents for the past year and a half. But in recent months the County began enforcing a provision in its law that forces food trucks to move every 60 minutes. Violating the anti-competitive restriction is a Class 1 misdemeanor, meaning that Arlington treats serving customers for 61 minutes as harshly as driving drunk or assault.

Worse yet, Arlington County’s law is vague and open to different interpretations. The law does not specify how far a food truck must move, only that it must “remain stopped for … no longer than sixty (60) minutes.” On three different occasions, three different Arlington officials gave Seoul Food three different explanations of how far their truck must move to comply with the law. Most recently, Shil moved the truck within the 60-minute period, but Arlington police still cited her because the officer felt that Seoul Food had not moved “far enough.”

With today’s dismissal, Shil can breathe easy knowing that she won’t go to jail for the crime of serving customers from her food truck.

“I’m happy this is behind us and we can focus back on making the food we love, serving our regulars and preparing to open our brick-and-mortar restaurant,” said Shil. “And I hope this case spurs the County to get rid of its 60-minute rule.”

Seoul Food is a member of the Food Truck Association of Metropolitan Washington, which has more than 50 members in Arlington and Washington, DC.

“This case highlights the absurdity of treating what amounts to a parking violation as a crime on par with assault,” said Doug Povich, Co-Owner of Red Hook Lobster Pound-DC and Chairman of the Food Truck Association of Metropolitan Washington.

“We have had good discussions with [Arlington Economic Development] and [the] County Board… to revise a law that just doesn’t make sense,” Povich said. “The Food Truck Association hopes to work with the County in the months ahead to craft a food-truck law that serves the County’ residents and workers and keeps food trucks as a vibrant part of Arlington’s business community and streetscape.”

Shil was represented in the case by attorneys in the Washington, DC office of Gibson, Dunn, & Crutcher LLP, a leading international law firm. Gibson Dunn attorneys Noah Sullivan, Michael Huston, Alex Harris, and Michael Diamant vigorously pursued Shil’s defense in order to secure the case’s dismissal. “We applaud the Commonwealth’s Attorney’s decision in this case and think it shows that they understand why this ordinance is problematic. A person cannot be prosecuted for a crime when the rules are vague, unclear, and conflicting,” said Noah Sullivan, one of Shil’s attorneys.

Also supporting Seoul Food was the Institute for Justice, which is based in Arlington.

“The Institute for Justice works to improve vending laws around the country, so when we heard about what was happening in our own backyard, we had to get involved,” said IJ attorney Robert Frommer. “Until recently, Arlington County has been lauded as a vending success story. We hope that the County will scrap its counterproductive 60-minute rule and let food trucks get back to what they do best: serving their customers.”

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  • https://www.facebook.com/ArlingtonFoodTruckAlliance AFTA

    Join us in the fight against unfair attempts by Arlington County to push food trucks out of business. https://www.facebook.com/ArlingtonFoodTruckAlliance

  • SteamboatWillie

    Activist judge!!

    And I applaud her.

  • Lance

    I think it’s great to see food trucks in Arlington receive protection from the established brick-and-mortar restaurants. The Arlington County Board should encourage competition — not corrupt laws preventing it.

  • Arlington Resident

    Maybe the Arlington County Police should be out catching criminals like the ones that did the “smash and grab” at the jewelry store this morning rather than issuing tickets to food trucks for of all things “loitering”?!?!?!

    • drax

      Right, because they can’t possibly do both.

    • speonjosh

      What would that look like, oh expert on policing?

      • BBMS

        Well, personally I do not think the police should be the ones enforcing this thing on the food trucks. Arlington does not have “meter maids”, at least not that I have seen. But they do have a fleet of sticker/plate/registration enforcement trucks that I see driving around through my neighborhood some mornings ticketing cars. I would rather see that type of enforcement than patrol officers writing what amount to parking tickets.

        But I also do not see any correlation to the jewelry theft.

        • Becoming Indifferent

          Arlington doesn’t have “meter maids?” I’m guessing you’ve never received a parking ticket.

          • CW

            I would go so far as to question if he has ever been to Arlington.

        • John K

          Arlington most certainly does have meter maids. If you don’t see them patrolling meters, watch them patrolling Arlington’s remaining surface lots for missing or out-of-date decals or registration.

  • ArlForest

    I love food trucks but any idea that they don’t have an unfair advantage over brick and mortar places is just silly. Never mind they are mostly cash businesses so who knows if they are reporting their income accurately.

    • drax

      Why is it “unfair?”

    • https://www.facebook.com/ArlingtonFoodTruckAlliance AFTA

      What’s the advantage? That they are limited in what they can serve, so they only clear a few hundred dollars a day? Or that they have to go through more strenuous inspections than brick-and-mortar restaurants?

      And to suggest that food trucks are skirting the law by accepting cash only is intellectually dishonest. Most of these trucks use Square or some other card swiping service, and I’d suggest a substantial percentage of their income comes from swiped cards.

      • ArlForest

        You think they have a more strenuous inspection process? Where are the reports of their food tax payments like we see for b&m places?

        • https://www.facebook.com/ArlingtonFoodTruckAlliance AFTA

          Having spoken with food truck owners/operators, they tell me they go through two separate inspections. Twice the number of inspections as brick-and-mortar restaurants

          The burden of proof doesn’t rest with me, as far as tax payments are concerned. You’re the one assuming food trucks are guilty until proven innocent.

          And several other points have been made here: weather, location, etc. The challenges food trucks face are different than the ones brick-and-mortar establishments face.

          • http://www.districttaco.com districttaco

            Here is a data point from us, District Taco, regarding taxes.

            Our food trucks/carts use an iPad-based service called “Square” for cash and credit transactions and we pay the same sales taxes we pay at our restaurants. We have paid the tax since Day 1 almost 4 years ago.

            All county taxes are paid through Arlington’s online tax portal (CAPP). We also pay VA state sales taxes on all cart revenue. Similar payments are made for our sales in DC.

            Additionally, our cart employees are on payroll just like our restaurant employees and we pay taxes for them as well.

            Lastly, we also pay personal property taxes on the carts and equipment as well as health and vending licenses.

            As someone who owns both food trucks and restaurants in Arlington and DC, I think this is a healthy debate with a lot of opinions on both sides. However, as far as taxes are concerned, the fact is that our food trucks are subject to and pay similar taxes to brick and mortar restaurants.

      • OddNumber

        The primary advantages would be substantially lower overhead and market entry costs and the ability to adjust location and schedule to meet demand. B&Ms pay rent, provide seating, have more staff, and can’t easily/cheaply pack up and move to a better location. Obviously this is a bit of a simplification because the revenue potential of a food truck is likely much smaller, but I’m just trying to point out there are in fact some advantages.

        Food trucks can be great for the weekday lunch crowd, but the B&Ms are assets that are available at a wider variety of times and can draw people to an area outside of the typical business day hours. Although the parking ordnance might go overboard, I don’t see it as evil to provide some protection to the B&Ms. A single food truck might not put a B&M out of business, but lining the street with 5+ every day could certainly be significant.

        • speonjosh

          There are undoubtedly advantages to the trucks. Just as there are advantages to the restaurants. But the notion that either has an “unfair” advantage is “just silly.” (Not least because how do you define “unfair?”)

        • speonjosh

          Why would the county government provide “protection” to restaurants?

          • OddNumber

            I think the “why” is easy. Having a variety of restaurants that serve people both during and after regular business hours is one component of what makes a given area desireable to live and visit. I think it is much harder to determine how to make sure the food trucks also get a fair shot.

          • speonjosh

            Yes, the county has an interest in having a vibrant local economy. But picking winners and losers within the restaurant / food truck sector seems a bit much. If a restaurant goes out of business because it couldn’t compete, why would the government get involved? In any case, the whole thing is basically moot because you can’t point to any restaurant that has gone out of business because of food trucks, nor will you (my prediction).

          • OddNumber

            I don’t disagree with most of your statements, but it does seem like you’re lumping food trucks and B&Ms into a single food service category. However, I think it is much more nuanced and the county is best served by preserving services from both types. The county isn’t picking inidvidual winners and losers, it is simply trying to preserve a mix. Food trucks aren’t outlawed, they are just restricted. The county just has to find a better way to restrict them to ensure that both market segments can thrive.

    • SteamboatWillie

      Who knows indeed? What’s your point?

    • speonjosh

      “[A]ny idea that [disagrees with me] is just silly.”
      Well, there’s a winner of a rhetorical statement. Please go to the front of the class and recieve your Orator of the Year award.

      • ArlForest

        Excellent rebuttal. What it lacked in substance, it made up for with nothing.

        • speonjosh

          What was there to rebut?

    • CourthouseChris

      What is unfair? It’s a different business model that certainly has some advantages, but nothing about it makes it unfair.

      • CourthouseChris

        Clearly I need to refresh more often as I was beaten to the point by no less than four people.

    • Kevin

      Where is your favorite restaurant today? Where will it be tomorrow? How many cooks can you fit in the kitchen? What is the weather like? Brick and mortar stops have the advantage of not having to be tracked down by their customers. They dont have to deal with the size constraints of a truck. They don’t force their customers to wait in the rain/sleet/snow.

    • novasteve

      They can’t serve alcohol, so I’d say they are at a severe disadvantage.

      • CourthouseChris

        You can, however, smoke in their dining room.

        • drax

          You are awarded one FREDTERP.

    • Ballstonian

      They certainly have some advantages, but they also have disadvantages. They can’t serve alcohol. They’re outside which, while nice in good weather, is not so nice in bad weather. At least from the ones i’ve followed on twitter, the trucks themselves seem to be pretty finicky, resulting in days when they don’t even venture out.

      • drax

        Certainly. But none of them are “unfair.” It’s just competition. The customers decide what they want.

  • Swag

    “‘We realize that the 60-minute time limit is challenging for vendors and for customers, and we are working to change it,’ Curtius said. ‘We hope to be bringing something forward in the Spring.’”

    In other words, they’re going to rent out spaces to food trucks and ban them in any other space. I’d also imagine that they’ll be grouped together a couple blocks off Clarendon/Wilson and the rents will be…excessive.

  • mickey_

    Another reason to fire the commissioners! Stay out of the vending business! Quit passing stupid regulations. This is another of the clutter of government out of control and wanting to control everything!

  • Joan Fountain

    “Arlington County spokeswoman Mary Curtius said the county is indeed working to change the ordinance.”

    So what are ya’ll (above) complaining about? The ordinance is a recognized problem and it’s going to be changed. What’s with all the faux-outrage?

    • Mack

      I’m outraged that you don’t know how to spell “y’all”. What kind of faux-Southerner are you?

  • George

    I am stunned that this article has been up for HOURS and not one person has commented on Red Hook’s use of the word “vibrant”.

  • JP

    What I find amazing is that Arlington passes the ordinances geared toward “protecting businesses or community” with the real goal os revenue collection. We have numerous examples which show this abusive nature. The county simply needs to be stopped and a harsh letter from Theo would be a great start.

    One which was highly irritating which I reviewed with several attornies was the “snow ordinance” which blately requires an individual to clear a public right of way or be fined. This essentially and legally is servitude. I’m simply waiting for the county to be bullish/stupid enough to try and enforce this. Several attornies really want the case since the revenue potential of litigation is awesome.

    The sad part about this is that Arlington will merely “pass-along” the cost to us as additional taxes and continue the reign of jackass ordinances. The current establishment really needs a shake-up since as losing their pensions and other financial impacts directly to them to make them think before acting. I know that they view each resident (business or person) as a cash cow and that has to stop.

    The Arlington Way – Shaking down businesses and residents one ordinance at a time.

    Things need to change. Together we can deliver the message.

  • Arlingtron

    There needs to be a FAIR set of regulations for all food vendors, brick-and-mortar or otherwise. No segment needs to be burdened because they don’t fit into some traditional definition. Any attempt to do so is merely protectionist. Of course making sure all comply with health codes is paramount. Also meeting ALL wage/worker rules and tax requirements is only fair. An enlightened community will embrace this new segment of our economy and help them succeed. That tax revenue will benefit our community. Each type of food provider has advantages and difficulties that should keep the competition fair. I would ask the COG be involved to get consistent rules for all DC jurisdictions.

    The only exception I would ask for is perhaps some provisions for designating appropriate locations that provide safe access by customers and not using parking meant for those visiting any type of business.

  • In defense of B&Ms

    I work at a retail store in the Crystal City Plaza (used be called the Underground) and I know that our neighboring restaurants are very upset that these food trucks, which do not pay taxes, purposely park DIRECTLY in front of their restaurants to syphon off their potential customers. This is unfair, and the restaurants have a point. The food trucks should not be allowed to park in front of restaurants.

    • speonjosh

      If I open a restaurant directly across the street from an existing restaurant, is that unfair? If not, what’s the difference?
      If a food truck siphon’s off customers from a restaurant, it is because their product is superior. This is not a matter of fairness, it is simply a matter of competition. The government does not exist to protect individual businesses from going out of business.
      Regulations on food trucks should be limited to those that protext the public at large – safety, health, orderliness, etc.

  • In defense of B&Ms

    As someone who works in a retail store in the Crystal Plaza Shops in Crystal City, I know that our neighboring restaurants are upset, and rightly so, that the food trucks, who pay no taxes, park DIRECTLY in front of their doors, syphoning off their potential customers. This is unfair to these restaurants. Food trucks should not be permitted to park directly in front of restaurabt entrances.

    • drax

      Sorry, but competition is not “unfair.”

      Parking in front of your restaurant is no more unfair than another B&M moving in next door to yours.

      Deal with it.

    • Quoth the Raven

      Why is it unfair? If the trucks are “syphoning” off potential customers, then your restaurant should offer a better product and thus get those customers to come inside.

      How do you know they don’t pay taxes?

    • Dan

      Well, if it’s right in front of their property, then I agree with you, because they’re paying for that property. I don’t have a problem with that. Especially if exhaust fumes or noise can affect the atmosphere of the restaurant, then sure. But I don’t agree with buffer regulations, that essentially give a restaurant the right to tell vendors what to do in parking spaces and storefronts that they’re not paying for either.

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