Gregg Kettles's blog

About 3 weeks ago I blogged about a Taco Truck Triumph, where an LA county ordinance imposing prohibitions on taco truck operations was held to be invalid. http://www.openair.org/node/439. Not content to let justice prevail, the County made a motion for reconsideration. In support of its motion, the County submitted declarations from sheriff deputies purporting to justify the prohibitions on taco trucks. It was not clear that the declarations would even be considered by the court. The ordinance had been invalidated on a demurrer. Demurrers are generally based only on legal pleadings and the laws themselves. Generally they do not involve consideration of declarations, affidavits, or other evidence.

Today hearing was heard on the County's motion for reconsideration. Attorney for the taco truck operators, Phillip Greenwald, moved to strike the deputies' declarations, citing well-settled authority that evidence is not to be considered on a demurrer. While the court acknowledged this general practice, it decided to deny the motion to strike and admit the deputies' declarations.

In April I blogged about an attempt by Los Angeles County to lower the boom on taco truck operators by making them liable for fines up to $1000 for staying in any one spot for more than a hour. http://openair.org/node/416

This week a Los Angeles Superior Court judge invalidated the County's ordinance, finding it unconstitutionally vague. This is not the first time that an ordinance purporting to regulate conduct in public space has been held void for vagueness. In 1972 a Jacksonville, Florida vagrancy ordinance was held to be unconstitutionally vague by the U.S. Supreme Court in the case of Papachristou v. City of Jacksonville. That city's vagrancy ordinance provided:

The City of Laguna Beach is buying property where a day labor center has been in operation for more than a decade. According to a July 24, 2008 LA Times story, there are no plans by the city to shut down the center, which it has subsidized for several years. The center enjoyed use of the land rent free for years, until the California Department of Transportation ("Cal Trans") discovered that it was the rightful owner and demanded compensation. Laguna Beach then began paying Cal Trans $420 a month in rent. Now the city is ponying up $18,000 to buy it lock, stock, and barrel.

In the grand scheme of things, that's not a lot of money. But one can't help but wonder if these costs could have been avoided if the city had chosen simply to designate a stretch of sidewalk or roadside as an appropriate place for soliciting day labor work and nothing more. Building a center undoubtedly attracted the attention of the state.

The Arizona legislature is considering making it a crime to seek day labor work on a public street or nearby area. House Bill 2412 would make it a misdemeanor for anyone to be found "Standing or remaining on any public highway or public street or any property adjacent to any public highway or public street and disrupting vehicle or pedestrian traffic for the purpose of soliciting day labor employment." The Arizona House of Representatives passed the bill in March and sent it to the Arizona Senate. That body has thus far failed to pass it, but last week granted a motion to reconsider the bill.

The Senate should be mindful of the First Amendment. Seeking day labor work is communicative activity. Laws restricting it implicate the First Amendment. Legal challenges have been brought against a number of similar ordinances, including a few on behalf of day laborers. First amendment law is famously complex, and the validity of any particular restriction on expressive activity turns on a whole host of issues, such as whether the solicitation takes place in a “public forum,” and whether the ordinance is content neutral, is narrowly tailored to achieve a significant government purpose, and allows alternative channels of communication. The outcome of individual cases is difficult to predict.

Today's Los Angeles Times reports that Los Angeles County is considering stiffening penalties for taco trucks that operate illegally. Currently taco trucks may remain stationary no longer than 30 minutes, subject to a fine of $60. But finding that some trucks are undeterred, the County proposes to give them up to an hour, but increase the fine to $1000. I blogged about a similar crackdown in Salinas, California last June. http://www.openair.org/blog/kettles_mc_edu?page=3
The reason is the same. Taco truck detractors complain that the mobile eateries contribute to disorder on public streets and unfairly compete with fixed restaurants.
http://www.latimes.com/news/local/la-me-tacotruck14apr14,0,4600263.story?page=1

Taco truck operators have threatened suit, hiring attorney Philip C. Greenwald to represent them. It's not clear what the basis of a suit would be. The operators might take a cue from a Maryland Attorney General, who opined that restrictions designed to bar day laborers from soliciting work from passing motorists was preempted by state law on road safety and violated free speech rights guaranteed by the first amendment. I blogged about that last week. http://www.openair.org/node/413

Preemption may apply here, too, especially for trucks on Whittier, Rosemead, and Firestone Boulevards. Those routes are numbered California State Highways.