Tarpon Springs food truck owners sue city over partial ban

The owners say restrictions allowing restaurants — but not independent food truck owners — to operate in some areas are unconstitutional.
Elijah and Ashley Durham run the Tarpon Springs food truck SOL Burger. They are suing the city over what they say is an unconstitutional ban prohibiting them from operating in some busy downtown areas.
Elijah and Ashley Durham run the Tarpon Springs food truck SOL Burger. They are suing the city over what they say is an unconstitutional ban prohibiting them from operating in some busy downtown areas. [ Courtesy of the Institute of Justice ]
Published May 19, 2021

CLEARWATER — Elijah and Ashley Durham were already having a tough year.

Elijah Durham had recently lost his job as a chef when the Tarpon Springs couple decided to open their own food truck. But within weeks of launching their new business outside a local brewery, they ran into problems with the city, which had recently passed restrictions on where food trucks could operate. They were told they would have to pack up and go somewhere else.

Now, the couple is suing the City of Tarpon Springs over what they say is an unconstitutional ordinance allowing restaurants, but not independent food truck owners, to operate mobile food operations in some of the city’s busy downtown areas.

In a lawsuit filed Tuesday morning in the Sixth Judicial Circuit Court of Pinellas County, the Durhams claim the city of Tarpon Springs violated the state’s constitution by acting in a protectionist manner, favoring the interests of local restaurants with restrictions that have caused the couple “substantial, irreparable harm.”

Together with attorneys from the Institute of Justice, which is representing the couple, the group addressed reporters at a press conference Tuesday outside the Old Pinellas County Courthouse in Clearwater. They couple is asking for the city’s so-called “food truck ban” to be declared unconstitutional, so they can once again work in the city in which they live.

The Durhams claim the ordinance contradicts the Occupational Freedom and Opportunity Act, passed last summer, which includes a provision that makes it illegal for Florida cities to impose citywide bans on food trucks. According to the lawsuit filed, the new restrictions on food trucks came in response to several complaints from Tarpon Springs restaurant owners, who voiced concerns that having food trucks operating near their businesses would result in unfair competition.

“This ban exists for only one, unconstitutional purpose,” the complaint says. “To protect established brick-and-mortar restaurants in Tarpon Springs from competition.”

A spokesperson for the City of Tarpon Springs said the office could not comment on pending litigation.

The Durhams, who launched their locally-inspired food truck SOL Burger at Brighter Days Brewing on Sept. 5, said they were barely open for three weeks when the city ordinance was passed, effectively banning all food truck owners from operating within the city’s popular downtown area and along the tourist-packed Sponge Docks.

The ordinance, passed last fall in the wake of the new state regulations, allows restaurants to operate trucks on their own property but mobile food operations like the Durhams’ can only operate in certain designated zones, including industrial areas and some sections of U.S. Highway 19. That’s unfair to food truck owners, the couple said, as they end up missing out on the pedestrian-heavy areas that allow for lucrative foot traffic business.

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“These zones include a strip of highway and an industrial sector where there are no restaurants, no craft breweries, no tourists, and few, if any, customers,” the lawsuit says. “Operating in the zones covered by this exception is not an option for Elijah and Ashley because it is not profitable enough for their business to survive.”

The couple, who in the meantime have been running their food truck outside breweries in Dunedin, Palm Harbor and New Port Richey, said their lawsuit comes at the tail-end of several attempts to petition the city to drop or amend the current restrictions.

“There have been multiple, multiple steps,” Ashley Durham said. “This is the result of this not happening.”

“It’s extremely defeating,” Elijah Durham said. “We live in Tarpon Springs, but the city made it nearly impossible for us to serve customers near our home just because we don’t own a restaurant.”

Attorneys with the Institute of Justice said they have successfully challenged similar food truck restrictions in other cities, including Fort Pierce.