MUSCODA - The situation surrounding food truck ordinances and Muscoda came to the end of its current chapter during the May 11 monthly meeting of the village of Muscoda.
During the previous and most recent Ad-Hoc Committee meeting it had seemed as though a general agreement had been reached between the community and committee to present to the board in terms of the ordinance. It was to be presented that in addition to much of the standard state required fare of food truck operation being included in the ordinance, it would also have Muscoda specific requirements. These included each vendor being allowed to purchase permits for two days in a calendar month. Furthermore, the vendor would only be able to use one of those permits for any of the seven days of the week. The remaining permit would need to be used only on Monday through Thursday. The hours of operation for the permit were restricted as well as where the truck could be set up, among other requirements that were included in the draft. Through lots of emotion and community involvement, it was decided to present this final draft to the board for their potential approval.
On Tuesday, prior to the board meeting a letter was sent out to all of the trustees, Village Clerk Cinda Johnston, Village of Muscoda Attorney Ben Wood, as well as this reporter from an Arlington, Virginia based attorney with the Institute for Justice. The attorney, whose name is Milad Emam shared that “as an attorney who has successfully challenged protectionist restrictions on Wisconsin mobile food vendors, I was disappointed to see the Village of Muscoda’s proposed Mobile Food Establishment Ordinance. This ordinance should be rejected in its current form.”
Emam went on to share in his letter that the organization he works with, the Institute for Justice (IJ) is a “national public interest, civil liberties law firm that advocates in the court of law and public opinion to vindicate the constitutional right of all Americans to earn an honest living. As part of the National Street Vending Initiative, we have extensively researched and reported and litigated and testified about the regulatory issues surrounding mobile vending for over a decade.”
He went on to share in his letter that the IJ won a constitutional challenge to a Wisconsin town’s “anticompetitive restrictions against food trucks.” Emam wrote “That town-Gibraltor- banned food trucks entirely in a 2018 ordinance. Once sued, Gibraltar replaced this de jure food-truck ban with a de facto food truck ban. The de facto ban nominally allowed food trucks but subjected them to onerous licensing restrictions that made operation virtually impossible-for example, food trucks were banned from vending in Gibraltar’s downtown area, where more than 85 percent of the town’s restaurants were located.” The letter went on to explain that a Door County Circuit court judge held that the ordinances violated the Wisconsin Constitution’s guarantees of substantive due process and equal protection because they were “nothing less than” economic protectionism, i.e. “an effort to protect brick-and-mortar restaurants….from competition from mobile food trucks or establishments.”
Village of Muscoda Attorney Ben Wood was present during the meeting and gave a synopsis of the letter and court case to the board and members of the public during the meeting.
Wood explained that the parts of the ordinance that could cause issues for the village would be the restrictions on operation time and the limit of two permits per month, which Wood noted “I’m assuming they’d look at that the harshest.”
“The question for you guys, is are you willing to pass this knowing you could go to court and it would be hard for me to win this,” Wood said to the board before suggesting removing the restrictions on time and limit of permits from the ordinance.
“This is a whole different play, I guess we’re asking for some input,” Village President Dorothy Hackl said.
“We don’t want to pass it tonight and we don’t want to end up in court,” expressed Trustee Dave Wiederholt.
“It’s kind of a slippery slope,” commented newly elected trustee Eric Johnson. “I don’t feel comfortable enough in light of this new information to vote on this.”
“But, then we’re right back where we started,” noted trustee Larry Anderson.
Attorney Wood went on to explain again that with no “rational basis” to restrict a food truck vendor to just two days a month among the other restrictions, he felt he would “lose the case” should it appear before a judge.
The conversation continued, discussing ordinances in other local and larger towns in the state. Until it was once again suggested to rework the ordinance to remove the restrictive language on days of the month, time of day, as well as where the trucks could be set up. As well as adding that smaller operations like lemonade stands would not need to get prior approval from the board, as it was written in the originally proposed ordinance.
Chairman of the Ad Hoc committee and local business owner Dan Behrens who was also at the meeting shared “What the concern for me is basically following the direction of an advocate for the food truck business, a suggestion not insured by any government. With no counter from the chamber of commerce. I would have gladly done that research but I didn’t have that opportunity. The template is being passed like a recommendation from law but it’s just being suggested by an advocacy group.”
Again Hackl addressed the board, “What do you want to do, we have to move on, we could keep talking in circles about this, but we do eventually have to move on.”
“It took 180 years for the first food truck to show up in Muscoda,” said trustee Johnson. “I don’t think we’ll be besieged by them anytime soon, so what is the rush (to pass the ordinance)?”
Wiederholt suggested to the board taking the item back to the Ad Hoc Committee for further revision.
“I don’t know. I don’t know that it’s gonna change much. I don’t think that dragging it out is gonna change much. That’s fine. I’ll go back to doing my job and you’ll go back to doing yours,” Behrens responded.
Anderson made the motion to pass the ordinance with the exception of the items in question. Hackle called for a second with no response. She called for a second two more times before declaring that item seven on the May agenda for discussion and action on ordinance regulating food trucks and food stands had died on the floor. This means that there will be no ordinance for food trucks at the current point, however, that the proposition of establishing an ordinance is still an option for the village.
Chief of Police Bill Schramm presented the information he had gathered for purchasing a new squad.
Schramm shared that a new squad had been budgeted to replace squad two. He shared that with his research he found that the Dodge Durango would be cheaper than what the village currently has in the Ford Explorer. Scramm noted that either of the vehicles the village would choose would have to go through a full upfit because none of the current equipment the village has would fit into a new vehicle. Schramm shared that he would recommend the Durango as the new vehicle as it is cheaper even with the upfit and neighboring communities have reported also purchasing this as their squad and finding it suited their needs just fine. The purchase was approved, however it was noted that it would be four to six months before the vehicle would be available.
In other board news:
• Public Works and Utility Employees were approved to change their hours during the summer to allow for a shorter work day on Friday. The Crews will be working 7 a.m. until 4:30 p.m. with a 7 a.m. until 11 a.m. Friday work day. Oncall hours will remain the same and available when needed.
• Village Clerk Cinda Johnson shared that the Hovercraft group will again be visiting Muscoda from June 11-13. They noted it would just be a cruise in not a big public event.
•Early Bird Pool Passes will be available•$21,300 in delinquent utility payments have been collected so far.