Taco Trucks Triumph

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:

‘Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.’

The Supreme Court overturned the ordinance because it failed to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden, encouraged arbitrary and erratic arrests and convictions, and made criminal those activities which by modern standards are normally innocent. While "void for vagueness" was the doctrinal basis for the opinion, it was clear that the Court was also concerned that government had gone too far in policing activity in public space. Four of the defendants who had been convicted under the Jacksonville ordinance had done nothing more than be seen together in a car late at night. The police claimed they were right to be suspicious: the defendants had stopped near a business that had been broken into several times. The court saw right through that explanation, writing during the struggle for civil rights that the defendants were mixed-race couples.

The upshot of the Papachristou case is that public space-- the streets and sidewalks-- belongs to the public. A wide variety of uses should be tolerated, even when certain uses might be perceived as distasteful or immoral to some. The Supreme Court admonished Jacksonville and other communities to be more open minded about the uses to which public space could be put.

Perhaps that is the same lesson to be drawn from this week's decision on the nation's other coast, 36 years later. LA county ordinance 7.62.070 reads:

A person engaged in the business of peddling liquids or edibles for human consumption from commercial vehicles used for the transportation and/or the preparation of food, either retail or wholesale, pursuant to a license obtained pursuant to this chapter, shall not remain or permit such vehicle to remain in any one location for the purpose of sale or display of such liquids or edibles for more than 30 minutes in a residential zone, or 60 minutes in a non-residential zone, during any three-hour period and shall not return to any location within one-half mile of each prior location where the person sold or displayed liquids or edibles within said three-hour period. Said three-hour period shall commence upon the Peddler’s departure from the last location where peddling occurred. Any person described in this section, during all of the time which he or she is at any such location, shall maintain the location in a neat and orderly condition, pick up and dispose in a sanitary manner all debris, garbage, papers, litter and other things which detract from the sanitation, safety and appearance of such premises, and otherwise comply with the California Health and Safety Code.

In overturning the ordinance, LA Superior Court Judge Dennis A. Aichroth found that is unconstitutionally vague in its description of how quickly a vendor could return to an area where the truck was previously parked. He also said that violated the vehicle code because county supervisors had not properly established that it was written in the interest of public safety. The facts are different from Papachristou, but the same basic policy concern is at stake. Public space belongs to all of us. A variety of uses should tolerated. Competing restaurateurs may not like taco trucks, but that's not a good enough reason to make it impossible for them to use the public streets to do business.

Kudos to attorney Philip C. Greenwald for arguing the case on behalf the taco truck operators. It's a victory for them, and for public space.