Law firm raises constitutional concerns over Denver’s LoDo food truck ban

A law firm is asking city leaders to lift the controversial ban on food trucks in Denver’s Lower Downtown nightlife district, arguing that mobile food vendors actually make the neighborhood safer.

Lawyers for the firm say the ban is not only bad policy, but may also be unconstitutional.

The Institute for Justice, a Virginia-based nonprofit law firm, on Wednesday sent a letter to members of the Denver City Council asking for the “repeal” of the ban that bars food trucks from certain parts of Market, Blake and Larimer streets between 18th and 22nd streets. Thursday, Friday and Saturday evenings.

The letter also offers help. The company is willing to work with Denver leaders to revise city rules to “enhance public safety, increase consumer choice and expand economic opportunity.”

“IJ has sued numerous jurisdictions whose laws have impermissibly restricted sellers’ right to economic freedom as
guaranteed by the U.S. Constitution and respective state constitutions,” reads the letter, written by attorney Justin Pearson. “IJ also has a long history of working with state and local authorities to craft sales laws that ensure public health and safety while maximizing opportunities for sellers and consumers.”

A ban on trucks selling tacos, gyros and other food at one of the city’s busiest nightlife epicenters began in late July. Announced by the Denver Police Department and the city’s Department of Transportation and Infrastructure, the rationale for the ban is that food trucks slow the dispersal of crowds when bars close and people gather around of them increase the risk of violence in an area that has seen at least four shootings this year.

The policy was announced two weeks after Denver police shot a man outside the Larimer Beer Hall, 2012 Larimer St., after he got into an altercation with another patron outside the bar. The man, who survived and was arrested, was carrying a gun when officers confronted him. Police also injured six bystanders in the incident.

Denver officials say the food truck policy was under review before the shooting took place. In a statement earlier this month, Denver police spokesman Jay Casillas said the department believes the ban will make everyone in LoDo safer, including food truck operators. .

The Institute for Justice has previously filed and won lawsuits regarding the regulation of food trucks and street vendors. These cases have primarily focused on fighting rules dictating where mobile food vendors could operate versus existing brick-and-mortar restaurants.

Lawyers for the firm argue Denver’s ban “smells like protectionism” because businesses with permanent storefronts aren’t subject to the same rules. The letter also references previous research from the Institute for Justice that indicates food trucks improve public safety by making streets more welcoming and providing more eyes and ears.

“None of the LoDo bystanders were hit by a flying spoonbill. That’s not what happened,” Pearson said Thursday. “It makes no sense to punish food truck owners because the city government is ashamed of its own mistakes. If you’re worried about crime, the last thing you want to do is get rid of food trucks.

While the policy was the work of the city’s police and transportation department, Pearson said his company sent the letter to council because council members had the power to rescind it.

The letter sets out the arguments for why the policy can be considered unconstitutional, including potential violations of equal protection guarantees.

The letter is not an ultimatum, Pearson said. The firm is waiting to see how the city will react. But “if we were to press charges against Denver, I would like to have our chances,” he said.

DPD and the Department for Transport failed to enforce the ban by council before implementing it, council chairman Jamie Torres said.

While the board has heard from food truck owners who make compelling arguments that their businesses are bringing positive activity to LoDo, Torres also believes there’s room to break up the crowds once bars close. Ultimately, Torres doesn’t think overturning the ban is the board’s call to make.

“My guess is that it’s up to the (police) chief and the mayor,” she said. “I imagine that’s something the city attorney’s office should look into.”

The police department is already looking to overturn the ban in a limited way.

Leilani Johnson, owner of RJ’s TacoWich, told Westword that she and other food truck operators met with DPD officials on Wednesday and learned the department may allow six food trucks into the prohibited area for weekends from Thursday 25 August. Trucks would be required to leave the neighborhood before midnight.

“It still doesn’t look like a solution,” Johnson said in Westword’s story. “It’s better than being banned, though.”

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