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City to Vendor: Selling Donuts On Wheels Is 'Not a Fundamental Right'

The City of Evanston recently filed a motion to dismiss a lawsuit from a donut truck, whose lawyers argue that the city’s regulations on mobile food vendors are unconstitutional.

The fight between the city of Evanston and a food truck selling donuts and coffee continues to percolate this fall after Beavers Donuts sued the city in August, alleging that Evanston’s regulations on mobile food vendors are unconstitutional. 

Lawyers for the city of Evanston recently filed a motion to dismiss the suit in Cook County Circuit Court’s chancery division. 

At issue is the city’s requirement that food trucks must be operated by brick and mortar restaurants within city limits in order to obtain a mobile food vendor license. Evanston also limits food trucks from operating within a 100-foot radius of any local restaurant. 

Beavers Donuts & Coffee owners Gabriel Wiesen and Jim Nuccio say they learned about the city’s regulations when they obtained a temporary permit to operate at Northwestern University’s Dillo Day this summer. Wanting to return to Evanston to sell their specialty donuts and beverages again, they found out they couldn’t obtain a year-long license without a local restaurant affiliation. Right now, Evanston’s Hummingbird Kitchen (operated in connection with Union Pizzeria) is the only food truck that currently holds such a license, according to a city spokesperson.

Filed by the Liberty Justice Center, the Beavers Donuts lawsuit argues that Evanston's food truck regulations treat local restaurant owners and food truck vendors from outside the city differently, violating the Illinois Constitution's guarantee of equal protection under the law. 

"That restriction doesn’t serve any legitimate health or safety purpose – Beavers Donuts fulfills every other licensing requirement – but serves only to protect one group of established business owners from creative competition," the website reads.

Lawyers for the city, however, point out that Beavers Donuts never actually attempted to obtain a mobile food vendor license.

The donut truck’s owners “cannot state that they were denied a license, as in fact they refused to even apply for one,” the lawsuit reads. “[Their] precipitous rush to the courthouse is premature.” 

The city also argues that, as a home rule municipality, the city of Evanston has broad powers to enact local legislation “for the protection of the public health, safety, morals and welfare,” according to the Illinois Constitution

Furthermore, the city argues that under Illinois Municipal Code, regulation of food trucks is within the city’s power to “regulate or prohibit the use of its streets for private gain” and “can be related to legitimate public safety concerns.”

“[Beavers Donuts’] purported right to drive their donut truck and sell coffee is not a fundamental right,” the city continues. 

Wiesen told Patch Thursday that he and Nuccio intend to keep fighting the case. In the meantime, they’re selling their gourmet donuts around the city of Chicago, hitting the Loop, River North, Jefferson Park, Albany Park and Hyde Park.

“Some of our best customers happen to be on college campuses around Lincoln Park and DePaul area and at the University of Chicago,” Wiesen says.

Grant Farrar, corporation counsel for the city of Evanston, said he expected the court to hold a hearing date on the motion to dismiss in December.

millie October 12, 2012 at 11:01 PM
Are Food Trucks.Fundamental Right? How are they different from DONUT TRUCKS?
Jim Osburn October 13, 2012 at 06:16 PM
Interesting how things turn around. Many years ago, in Chicago neighborhoods, there used to be many hotdog carts on street corners (my favorite was Johnny's cart that would park at Lincoln and Sunnyside), but the city banned them by requiring running water and toilet facilities. Now, motorized versions are the "in" thing and, I guess, bodily functions are not the same as it was prior generations.
millie October 13, 2012 at 08:13 PM
You see Check Please last night? They did a program on the Food Trucks.
recarry October 14, 2012 at 04:14 PM
Evanston bureaucrats think too highly of themselves and their "vision". This is the same progressive city that wants landlords to violate due process and immediately evict tenants engaged in "criminal activity" (whoever decides that) or face draconian fines and loss of their license. Nevermind that they expect landlords to confront these "dangerous" people without the benefit of side arms and canine units that Sheriff deputies bring to evictions. Even donut vendors are dangerous in holier-than-thou Evanston.
Gabriel Sami Wiesen October 16, 2012 at 11:34 AM
The right to sell a consumer produce in a safe and ethical manner should not be denied simply to protect a group of rich storefront owners who are not creative enough to compete with the same customers base strictly by the taste of their food and their customer service. Anyone who owes a restaurant and has a problem with food trucks clearly is not running their business successfully because if they were; they would either have such great food a food truck outside their restaurant wouldn't matter, or they would have sold enough great food to invest in their own food truck if they truly believe the business model has such an advantage. Beavers has such a great product and is so well liked they are already expanding into a storefront in Chicago! Their food truck helped them grow financially into being able to afford a store, and I'm sure the case would be similar for many Evanston entrepreneurs of their city would stop looking so backwards. Also I understand that Beavers originally tried to partner with an Evanston based bakery which has since closed. They were DENIED by the city of Evanston before an application for a mobile vendor license could be issued because city officials in Evanston stated Beavers would need to own 51% majority is said bakery. In other words Beavers Donuts did apply for a license and we were shot down by Evanston Officials before they could finish filling out the paperwork in Evanstons City Hall.

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