Feb. 19 2014 10:16 AM

San Diego officials say regulations target public safety, don't limit competition

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Proposed regulations would significantly limit the operation of food trucks in the Gaslamp Quarter, Little Italy and some coastal communities.
Photo illustration by Lindsey Voltoline

Where San Diegans can buy a lobster-grilled-cheese sandwich or a chipotle-eggplant taco from a truck has been the subject of much talk during the last few months. Food-truck operators, neighborhood associations, city bureaucrats and elected officials have hotly debated how to regulate a mobile-food-vending industry that's evolved in recent years to provide much more than bean burritos.

Facing pressure from so-called gourmet-food-truck operators, the city recently acknowledged that, under the state's vehicle code, it can regulate mobile food vendors only in the interest of public safety. As a result, proposed regulations no longer include a rule that would have banned food trucks from operating within 75 feet of a street-level restaurant without permission from the owner.

This decision, stemming from an opinion from the City Attorney's office and months of public meetings, significantly frustrated at least one city leader.

"So, just to make it clear, we're not allowed to do economic protectionism, even though that's protecting the restaurants that we have?" City Councilmember Lorie Zapf asked a deputy city attorney at the Feb. 12 meeting of the council's Smart Growth and Land Use Committee, which she chairs.

"If someone just comes and parks right next to them at the lunch hour and, you know, kind of takes a lot of their business, we're not allowed to protect the restaurant legally is what I'm hearing," she added.

The 75-foot ban would be difficult to justify in terms of public safety, but the City Attorney's office is "happy to analyze it," responded Deputy City Attorney Inga Lintvedt. "There's case law that ties the city's hands there, but the city is always free if it can make public-health-and-safety findings and tie it that way."

How the city justifies its proposed regulations has become the central issue in the debate over where food trucks can operate.

During the past decade, many cities, notably Los Angeles, San Francisco, Portland and Austin, have grappled with how to regulate the emerging industry of gourmet food trucks. While San Diego has hashed out its position, local food-truck operators have dealt in the last year with vague city rules, selective enforcement and restaurant owners increasingly concerned about competition.

Gourmet-food-truck owners in San Diego and elsewhere have long complained that regulations often unfairly limit competition and, in some cases, have won significant legal battles. In response to concerns, interim Mayor Todd Gloria recently assured mobile food vendors that the city's only intention with its draft regulations is to promote public safety.

"I've heard that the proposed ordinance is somehow anti-competitive, or discriminatory and enforces rules on food trucks that do not apply to other businesses in adjacent areas," he said at a Feb. 13 press conference. "I'd like to correct that. The intent of the ordinance is a fair approach to protect public health, safety and welfare."

The draft regulations, which will go before the City Council on March 3, would prohibit food trucks from operating without a special-event permit in the Gaslamp Quarter and in the heart of Little Italy. In coastal portions of Pacific Beach, Mission Beach, Ocean Beach, La Jolla, as well as around San Diego's universities, food trucks would be limited to private property due to parking concerns.

"The Gaslamp Quarter and Little Italy are special-character locations with significant historical cultural resources and extremely high levels of pedestrians and vehicular activity, where food trucks would be allowed only as a part of a special event, in order to allow for appropriate planning and consideration, so we can minimize their potential impacts," Gloria said. "In locations mapped as high-parking demand with limited on-street parking availability, food trucks would be limited to operating on private property in order to preserve the very limited, much-needed on-street parking for customers."

Many in the food-truck industry aren't buying what the city's serving up, saying as much at the Feb. 12 committee meeting.

"We do the majority of our business in Gaslamp part of area that's banning food trucks," said Christian Murcia, owner of Curbside Bites, a booking service for food trucks. "I don't understand why me, a resident of downtown San Diego, is being discriminated against and being told that I can't be part of my community."

The city's regulation of food trucks amounts to industry "discrimination," said Alex Gould, owner of the Stuffed! food truck. "This city is still in an infancy stage when it comes to developing a culture, and I think food-truck culture is a very important trademark in any major city."

This is protectionism under "the guise of public safety," said Matt Geller, a lawyer with the Southern California Mobile Food Vendors Association. "The public-safety impacts that they're claiming to want to deal with won't be there."

The local chapter of the California Restaurant Association, which represents several businesses that own food trucks, supported the draft regulations.

"What you have before you is a comprehensive policy that they're putting forward," said Chris Duggan, a lobbyist for the association. "We've spent about six months working with different associations. I've worked with Christian [Murcia] and the United Food Truck Association here, as well."

However, citing a wide variety of concerns, the council members who sit on the Smart Growth and Land Use Committee unanimously voted to forward the draft regulations to the full City Council without a recommendation.

It's questionable whether the neighborhood restrictions can be legally justified under public safety, said Councilmember Scott Sherman. "I really have a problem with the different areas in the districts. To me, that looks like a ban. No matter what the size is, we're going to get lawsuits. I'm already seeing stuff here from different groups that are talking about lawsuits. It's happened in other cities."

When the proposal is brought to the council, staff needs to provide documentation outlining specific public-safety concerns, said Councilmember Sherri Lightner.

"I believe with our current emphasis on bicycles, the large number of pedestrians, it would be possible to make those findings. If it's not, I would like to know that, as well."

Under the proposal, food-truck operators must still acquire a business tax certificate and a county health permit. However, there would not be a requirement for any other type of city permit.

Property owners in a commercial zone would be required to have a city-issued permit in order to host food trucks on private property. That permit is estimated to cost up to $935 for the first year and $132 for renewals. Property owners in industrial areas are not required to have a permit.

Within 500 feet of homes or apartment buildings, food trucks would be barred from operating after 10 p.m. Sundays through Thursdays and 11 p.m. Fridays and Saturdays. According to city officials, there are no records of complaints about food trucks in residential areas.



Write to joshuas@sdcitybeat.com or follow him on twitter at @jemersmith.

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