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Blackbird’s attorney: different rules for food trucks versus restaurants expensive and unfair

(Dan Cepeda, Oil City)

CASPER, Wyo. — Regulations pertaining to mobile food vendors have received City Council’s attention in recent weeks. Some members have expressed concern that the public may perceive the Council as anti-food truck.

Councilman Ray Pacheco said on Tuesday, May 21 that he thinks this perception is inaccurate.

“I think that couldn’t be further from the truth,” he said.

Pacheco added that finding the right regulatory balance when it comes to mobile food vendors can be difficult.

“There’s no perfect answer,” he said. “I try to always blend a balance.”

Pacheco said he thinks that he and the rest of the Council strive to find a regulatory approach that considers both the needs of business owners and the need to ensure the safety of Casper citizens.

“I try to always blend a balance,” he said. “You have to have some type of regulation or it would be absolute chaos.”

Councilwoman Khrystyn Lutz took a similar position. She said that she thought some young professionals may not choose to come to Casper due to perceptions that the community has too many regulations on things like food trucks.

Lutz said she thought it was important for the Council to take steps to combat that perception.

“We’re walking a fine line,” she said. “I think it is going to be perceived that we’re over-regulating. As a young professional, I don’t want the perception to be that Casper isn’t [a place that welcomes young professionals and things they enjoy].”

Pacheco, Casper Mayor Charlie Powell and Councilman Mike Huber were critical of a role they thought social media has played in forming some negative perceptions of Council’s positions.

Huber said that stories sometimes focus on isolated statements made by councilmembers which could paint an inaccurate view of their actual positions.

At Tuesday’s meeting, the Council passed on second reading an amendment to the Municipal Code that would make mobile food vendors operating out of trailers comply with the same fire code regulations that apply to vendors operating out of food trucks.

Casper Mayor Charlie Powell said that he thought the amendment was fairly straightforward and had the simple purpose of treating all mobile food vendors in a consistent manner.

He said that a question about whether to make room for exceptions in the fire code for certain types of cooking equipment such as wood-fired stoves was a separate issue.

Councilman Bob Hopkins didn’t appear to entirely agree with Powell’s position. He offered an amendment to the proposed ordinance that would make exceptions for wood-fired ovens manufactured to operate without hood systems installed.

The fire department has said that installing the hood systems is a necessary safety precaution whenever “grease-laden vapors” are produced in the cooking process in enclosed spaces.

While Hopkins’ amendment failed, he said that in researching wood-fired ovens, he thought that some wood-fired ovens such as those installed in a Blackbird pizza trailer were meant to be directly vented and that a hood system was not the appropriate way to ensure a safe cooking environment in such cases.

Councilman Steve Freel also said that he thought ovens like Blackbird’s did not need the hood systems, but said that he thought establishing a clear appeals process for mobile food vendors seeking permits would allow exceptions to be made in such cases.

Pacheco agreed.

“I think the appeals process is going to be our safest way to accomplish that,” he said.

An additional amendment was successfully added to the proposed ordinance on Tuesday which would make the City Council the final appeals board regarding the permitting of mobile food vendors.

That amendment was initially suggested by Vice Mayor Shawn Johnson, but was formally proposed by Councilman Chris Walsh.

City Attorney John Henley said that mobile food vendors do already have a means of appealing decisions to a Planning and Zoning related board that oversees questions pertaining to things like the building code.

Walsh said that the intention of his amendment would allow that board to act as the first means of appeal and that Council could act as an additional appellate body when the other appeals process is unable to resolve disputes.

Blackbird’s attorney Alaina Stedillie addressed a letter to the City Council on Wednesday, speaking to their Tuesday night food truck discussion. She praised the Council for taking the issue seriously, but said that some questions remain unresolved.

“While my client and I believe that consistency in the code governing mobile food vendors is important, and while we are incredibly happy that an appeals process is being considered so that the code is in compliance with applicable Wyoming statutes, we believe that an important point was lost in the discussion last night,” she wrote. “Why are mobile food vendors being treated differently than brick and mortar restaurants?”

Hopkins raised a similar point during Tuesday’s discussion, pointing out that wood-fired ovens at Racca’s Pizzeria and Firehouse Pizza have not been required to install hood systems.

In addition to this point, Stedillie said that mobile food vendors have to show compliance with City codes on a yearly basis in order to receive annual permitting, something restaurants do not have to do on a regular basis.

“Under the current code, or even the code as it will read if you pass the amendment you are considering, mobile food vendors must receive a permit every single year,” she wrote. “They must update their trucks every time the code changes.”

“Brick and mortar restaurants, however, only have to update their premises if they remodel or if the business changes hands.  To date, I have heard no one articulate a rational basis for this distinction.”

“Why are we treating one class of businesses differently than another?  It seems fairly arbitrary and capricious to require mobile food vendors to pay a permitting fee on an annual basis and pay to update their commercial kitchens every time a change is made to City code, while their stationary counterparts do not.”

Stedillie said that establishing an appeals process was something the Council should do, but pointed to some problems in that area as well.

“Mobile food truck vendors should not have to pay the premium of hiring legal counsel, filing appeals, and potentially bringing suit every time the code changes while their brick and mortar counterparts do not,” she wrote.  “These kinds of costs are prohibitive and will certainly discourage new businesses from starting, let alone flourishing, in our City.”

Stedillie wrote that she did not agree with the argument that the proposed amendment was simply about making the code consistent.

“What is the point of extending a regulation to cover more people if the regulation itself is flawed?” she wrote. “I would encourage the Council to table this Amendment until it can address the fundamental flaws in code that treat mobile food vendors differently than their brick and mortar counterparts.”

Council would need to pass the amendment on third reading during their June 4 meeting for the changes to become official.

While Lutz voted to move forward with the amendment on Tuesday, she also said that she hopes Council will find time to address some of the other mobile food vending issues separately.

Johnson and Hopkins voted against the amendment on Tuesday.