A formal demand letter has been sent to members of the Gibraltar, Wisconsin, town board, including its restaurant-owner chairman, putting them on notice their ban on a competitor’s expansion plans likely won’t stand up in court.
And that’s where the dispute will end up, says the Institute for Justice, if the situation isn’t corrected.
The battle royale erupted after the owners of the White Cottage Red Door, a Door County shop known for “everything cherry,” opened a new food truck in its own parking lot.
“Unfortunately, the town of Gibraltar’s board wasn’t thrilled with the new competition for existing brick-and-mortar restaurants,” said the IJ. “So, shortly after the food truck opened, the board promptly banned all businesses on wheels.”
IJ said the ordinance “has one purpose: economic protectionism.”
“The board’s chairman – who voted for the ordinance – owns a brick-and-mortar restaurant just two miles down the road. Also, the former board member who pushed the county to revoke White Cottage Red Door’s zoning permit last fall works at another restaurant in town.”
IJ lawyer Milad Emam said White Cottage Red Door “just wants to sell burgers and barbecue on its own property from a state and county-approved food truck.”
“The only thing stopping it is the Gibraltar town board, whose members passed an ordinance to protect special interests. That’s not just wrong, it is also unconstitutional,” he said. “The Wisconsin Constitution clearly prohibits governments from picking winners and losers, which is why we’re putting the board officially on notice: either repeal this unjust law, or face a lawsuit.”
The offending food truck came about because Chris Hadraba, one of White Cottage Red Door’s owners, spent years making delicious burgers at a restaurant in Florida.
IJ said he and his co-owners, all of whom have deep Wisconsin roots, wanted to boost their revenue during the warms months of summer. So they bought a truck, earned a state mobile-restaurant license and county zoning permit, and then opened.
The first customer was Gibraltar’s constable, who assert the truck was illegal, even though permission from the state and county had been obtained.
“When the town board found that out, it tried to convince Door County’s zoning department to revoke the truck’s permit. The county refused, so the town board passed a new ordinance banning all sales on wheels. Fines for violating the new ordinance can reach $500 per day,” IJ said.
“We were shocked to hear that our modest food truck set up in our own parking lot was illegal,” Hadraba said in a statement released by his lawyers. “This was an investment we made carefully with attention to the rules. Those rules changed when the town board saw our truck as a threat to their businesses. All we want is to be able to compete.”
IJ said the restriction is unconstitutional, and Wisconsin’s Constitution protects the right to earn a living.
“Gibraltar now has 120 days to respond to White Cottage Red Door’s formal demand that the town scrap its unconstitutional and illegal vending ban. If the town board insists on maintaining the ban, White Cottage Red Door and the Institute for Justice will file a lawsuit,” IJ said.
“Food trucks offer entrepreneurs an innovative way to satisfy their customers, but too often public officials stifle that innovation with bans and anti-competitive regulations,” said Robert Frommer, a senior attorney with the Institute for Justice. “If this attempt to use public power to prevent competition stands, it could threaten businesses in more than just Gibraltar. We will work to vindicate White Cottage Red Door’s constitutional right to operate their food truck, even if that means taking the matter to court.”
IJ said it already has won several cases against food trucks in San Antonio, El Paso and Louisville.