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Food trucks allowed to drive ahead with suit against city ordinance

John Engelbert San Francisco picks up sandwich from The FShallot food truck which was parked downtown Chicago Wednesday May 8

John Engelbert of San Francisco picks up a sandwich from The Fat Shallot food truck which was parked in downtown Chicago on Wednesday, May 8, 2013. | Ryan Pagelow~Sun-Times Media

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Updated: July 15, 2013 7:55PM

A Cook County judge Thursday left intact the majority of a lawsuit seeking to overturn the city’s controversial food truck ordinance.

In letting the lawsuit proceed, Judge Peter A. Flynn said he is “uncomfortable” with a provision of the ordinance that requires food trucks to install GPS systems so the city can track their whereabouts.

“It is not clear . . . how the city proposes to protect against the misuse of the data (collected),” Flynn said, in making his ruling.

Lawyers for two of the food truck operators — Schnitzel King and Cupcakes For Courage — called Flynn’s ruling against the city a substantial victory. The city was seeking to have the food truck operators’ lawsuit dismissed.

“This is a big win,” said attorney Bert Gall. “Make no mistake about it, this means our clients will get their day in court. The city was trying to cut this case off at the knees, and it failed.”

Lawyers for the food truck operators filed suit last November, arguing that the new city ordinance governing mobile vendors is overly “burdensome” and that it violates the Illinois Constitution.

A rule that requires food truck operators to stay 200 feet from brick-and-mortar restaurants interferes with the vendors’ freedom to lawfully operate a business, the suit argues. Another part of the city ordinance — requiring food truck operators to install GPS systems so the city and the public can monitor their whereabouts — violates the vendors’ rights “to be free of unreasonable searches and seizures.”

In court Thursday, city attorney Andrew Worseck argued that the law is reasonable — a careful compromise crafted by the City Council — and that the GPS component is not unduly intrusive. Worseck pointed out that food truck operators already broadcast their location online.

But Judge Flynn said he is troubled by parts of the GPS requirement because of the potential for abuse, and said he wants to learn more about how the city plans to protect against misuse of the data collected.

Flynn suggested the GPS tracking might allow city officials to notice, for example, that a food truck driver was making a high number of stops at a particular adult book store.

“Is it any of the government’s business? Absolutely not,” Flynn said.

Flynn also said that while he suspects the 200-foot rule will likely keep the mobile units out of the Loop entirely, he said he’d like attorneys to draft a city map that would give him a better sense of how the rule applies.

The judge, however, rejected the food trucks’ argument that they should be treated the same under the law as restaurants. Flynn said case law distinguishes them as a separate entity that allows the city to treat them differently.

“We are pleased that the court dismissed the equal protection claim, and are confident that the City will prevail on all remaining counts,” said Roderick Drew, a spokesman for the city Law Department.

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