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Proposed food truck fees in Williamsville would be among highest in country, lawyer says

Williamsville officials have said the village isn't trying to ban food trucks. But its proposed regulations would make the village one of the most expensive towns in America for food trucks to operate, a food truck attorney says.

"The proposed village statute involves a fee system that would make it among the highest in the nation," attorney Mitchell M. Stenger, an attorney for the Western New York Food Truck Association, wrote this week to village officials.

Stenger notes that Williamsville's proposed rules would require a $200 annual registration fee per vehicle, not just per business. Add to that a $50 "fire prevention permit fee" per event on private property, and the cost to businesses balloons, Stenger said. He pointed to an example given at a recent public hearing that showed the cost for one summer of weekly events at a church would total about $650 in fees, not to mention the annual food truck fee required to operate in the Town of Amherst, of which the village is part.

The 50 largest cities in the country typically impose an annual fee of $50 to $250 per business, not per truck, he said.

[Your guide to Buffalo's food trucks]

[Photo gallery: Smiles at Food Truck Tuesday at Larkin Square]

The Village Board held a public hearing on the proposal June 13, which officials said would remain open at the board's next meeting, which is Monday.

The Williamsville Business Association recently voted to urge village officials to ban food trucks on public streets.

Here's the full text of Stenger's comments:

In furtherance of our conversation following the Village hearing held June 13, 2016, I am writing to register my clients' objections to the proposed statute (Local Law X) seeking to regulate Mobile Food Vehicles within the Village of Williamsville. Contrary to suggestions by Village representatives that this proposal was virtually “the same as the Town of Amherst, but without the proximity restrictions,” the Village proposal differs vastly from the Town’s ordinance in several respects — in particular regarding the licensing process, the annual fees charged by the municipality, and the apparent sole discretion of the Mayor of Williamsville in determining who, when and — presumably — wherefood trucks may operate within the Village.

The complete Town of Amherst Chapter 148, “Peddling, Soliciting, Transient Businesses and Mobile Food Vending” (as amended 05/20/2013), can be accessed at ecode360.com/13278948.

Fees
Amherst charges food trucks an initial annual fee of $400 for the first vehicle, $200 for each additional vehicle (Lloyd and some other operators now have multiple trucks), and then a reduced permit renewal fee of $200 in subsequent years (Ch. 148-9). The WNY Food Truck Assn. objected to the initial proposed Town ordinance (which was $500/truck annually) as the assessed amount would place the Town at the higher end of the spectrum of registration fees throughout the entire country; indeed, the fifty largest cities generally impose a yearly fee ranging anywhere from $50 to $250 per business (not per vehicle). The purpose of registration fees, by the way, is to recoup the cost to the municipality of administering the licensing program — and are not supposed to be a revenue-raiser for the governing agency.

The proposed Village statute involves a fee system that would make it among the highest in the nation. The proposal calls for an annual registration fee of $200 per vehicle (not per business) and, moreover, requires a “$50 fire prevention permit fee per event on private property”. Thus, as aptly noted by Ms. Rebecca Donahue of SS. Peter & Paul Church at the last public hearing, a food truck operating weekly on their private property over the summer would pay upwards of $650 of weekly fees — in addition to the annual fee of $200 — for a gross Village fee of at least $850 for only three months of operation (and which does not include the additional $200-$400 annual Town of Amherst fee).

Assuming operating food trucks have already passed applicable fire inspections, the $50 “fire prevention fee per event” is duplicitous and has absolutely no justification; rather, this “per event” fee is clearly designed to discourage trucks from repeatedly operating on private property in the Village and, as such, is a money-grab to raise revenue for Williamsville. It should also be noted that trucks operating on Church grounds donate 10% of their gross sales to the Church — money that is desperately needed for their operating budget. The proposed fee would decimate the fundraising efforts of this charitable organization.

Furthermore, the Village proposal also contains a vaguely worded requirement for payment of a “Mayor’s Permit Fee as determined from time to time by the Village Board of Trustees." Such a speculative and similarly unsubstantiated additional fee requirement has no place in a statute governing the business of food truck (which require cost certainty for operators) and, as written, seems to exist in order to imply the threat of additional fees and taxations of food trucks — based upon the ostensible whim and caprice of the Mayor and/or Village Board of Trustees. Such a clause has nothing to do with health and safety concerns and, as such, should be stricken from the proposed law.

Mayoral Discretion & Rumored Operating Prohibitions/Restrictions
The Town of Amherst statute (and, indeed, every food truck law now on the books in WNY) provides that once a food truck operator has paid the required fee to the clerk, and completed any required background checks and health/fire inspections, the clerk of the municipality shall then issue the applicable permit or license to the operator. However, as the new Village proposal reads, the issuance of an operating permit is to be done by the Mayor (not the Village Clerk) and, apparently, at the Mayor’s sole discretion. Moreover, and of even greater concern, is that the past permit process required the prospective operator to specify on its application where the truck intended to operate. This is antithetical to the business model of mobile food vending in that the food trucks, having wheels, are not physically restricted to one site — they are indeed “mobile”. Thus, as is the case in every other jurisdiction in WNY, food trucks — once permitted — can operate wherever they can secure a legal parking spot (so long as they abide by NYS DMV regulations and any time/proximity restrictions specific to that jurisdiction).

The Village proposal appears intentionally vague or silent regarding food truck location operation. Food truck owners, however, are understandably concerned with comments made by certain Williamsville stakeholders demanding that food trucks be prohibited from operating on all public streets — including Main Street -- or should be permitted only in designated spots, or should otherwise be relegated to operating in back parking lots (owned by the Village or empathetic private businesses). Such vagaries are unacceptable to the food truck operators as these restrictions are not actually based on health or safety concerns; rather, these arguments simply seek to support established brick and mortar businesses by precluding or severely restricting mobile food vending in relatively more higher trafficked areas.

Indeed, while it has been suggested that Main Street in Williamsville is “too congested” to allow food truck operation, those making this argument have offered no supporting basis other than mere speculative opinion. In fact, food trucks have successfully operated for years now in WNY on several busy thoroughfares (including Main and Allen Streets and Elmwood and Hertel Avenues in the City of Buffalo); moreover, food trucks have been permitted and continue to operate in much denser metropolitan areas across the country — from New York City and Boston, to Los Angeles and San Francisco, and hundreds of cities betwixt and between -- with urban densities far exceeding the Village of Williamsville. In many of these larger municipalities, and even in WNY’s Buffalo, Amherst, and the City of Tonawanda, food trucks have regularly been confronted with the notion that “you can’t be allowed to operate where all the people are, because it’s dangerously congested”; however, such area prohibitions or draconian restrictions have repeatedly been struck down by courts when legally challenged.

When the WNY Food Truck Assn. began negotiating with the Common Council of Buffalo back in 2011 to develop appropriate food truck regulations, our organization was supported by The Institute for Justice (a non-profit libertarian public interest law firm based in Washington, DC). Ms. Christina Walsh, the I4J Director of Activism and Coalitions, traveled to Buffalo, NY, to speak to the Common Council about food truck legislation in other cities across the nation and, moreover, how the I4J has successfully litigated a number of law suits contesting express prohibitions and undue restrictions promulgated by various municipalities. Her testimony was persuasive in encouraging the Buffalo Common Council to refrain from pursuing regulations that would prohibit or severely limit food truck operation by location and, instead, Buffalo eventually adopted less restrictive measures that could then be revisited after completion of a one-year trial period. Upon the eve of the expiration of this “Sunset Clause,” the Common Council maintained the less restrictive operating regs and, additionally, substantially lowered the initial and annual renewal fees. The end result is today’s dynamic food truck scene in WNY, consisting of more than fifty regional food truck businesses (including Rochester) and, for example, the ever-popular and still-growing destination events such as Food Truck Tuesdays at Larkinville.

I recently contacted Ms. Walsh and she will email me later today the text of her prepared remarks delivered to the Buffalo Common Council many years ago. I will provide a copy of same to you and the Mayor and the Village Board Trustees before the public hearing now scheduled for this Monday, June 27, 2016. Her expert testimony is instructive in that the subject matter contained therein addresses many of the same issues now being confronted by the Village of Williamsville.

The Board of Trustees have repeatedly recognized that their sole function is to pass legislation which protects the health and safety of its constituents — but without unduly regulating or favoring one form of business over another. We trust that the Village Trustees will proceed similarly in their ongoing deliberations regarding the operation of food trucks within the Village and, in so doing, will resist the recent resolution of the Williamsville Business Assn., seeking to ban food truck operations on Main Street as well as on all other public streets. We note that similar efforts to ban trucks from operating on major thoroughfares in Buffalo, Amherst, and the City of Tonawanda, were all ultimately rejected by local legislators. The result has been that food trucks have substantially contributed to the quality of life for the residents of those communities, and we would like to have a reasonable opportunity to replicate this success in the Village of Williamsville.

Inspections and Miscellaneous Items
The Village proposal requires applicants to undergo a truck inspection by a Code Enforcement Officer and to also secure a fire inspection permit. As it stands now, all regional food trucks are required to be registered with the State of New York Department of Motor Vehicles; to secure Federal and NY State Department of Transportation identification numbers (if the trucks exceed 10,000 lbs. — and nearly all trucks do exceed this weight); trucks must be operated and outfitted in accordance with all applicable Federal and NY State DOT safety equipment and lighting; trucks (and their respective required commissaries) are subjected to regular Erie and Niagara County Health Department inspections; and the trucks are already subjected to safety and fire inspections by adjoining jurisdictions such as Amherst, Buffalo, Tonawanda, and West Seneca, etc.

It is respectively suggested that Williamsville accept certificates of such inspections from neighboring jurisdictions — in particular those now conducted upon trucks licensed to operate in the Town of Amherst — in lieu of conducting their own duplicitous and time-consuming inspections; alternatively, if Williamsville does require their own inspections, the cost of such ministerial proceedings should be included within the annual fee (and not be charged separately to food truck operators as an "add-on”).

The Village proposal contains no “carve out” for Charitable Organizations as is the case in Amherst (see Ch. 148-2 & 148-5) and Buffalo (ecode360.com/162654484).

The Village proposal contains no provisions whatsoever for the enforcement of the statute or for penalties for violations of the code (compare, i.e., Amherst Ch. 148-13 and 148-14). Who is going to enforce the proposed Village code going forward — Town of Amherst police officers? What will be the stated penalties to be imposed for any alleged violations of the Village code? Or are any penalties also going to fall within the jurisdiction and sole discretion of the Mayor? These are all significant questions that are not addressed in any manner by the present proposal.

Conclusion
Based upon all of the forgoing, and the many public comments made in support of food trucks at the hearing held June 13, 2016, it is clear that the Village Board of Trustees have many more issues to consider when contemplating legislation to appropriately regulate food truck operation in the Williamsville. While the current proposal is a good step in this direction, it is but one step of a longer journey -- especially if the goal of the Village is to enact progressive legislation that will benefit Williamsville as a whole, while striking an appropriate balance between the concerns of local stakeholders and those individual food truck operators looking for a small foothold in the community. We look forward to continuing this dialogue with the representatives of the Village and we share the end goal of seeking to craft legislation that will ultimately enhance the quality of life for the residents of Williamsville.

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