The owners of a Florida food truck vowed to continue their legal battle against Tarpon Springs after a Florida court decided that they could not sue the city over an ordinance that requires independently operated food trucks to use someone else’s name in order to operate downtown. Elijah and Ashley Durham opened SOL Burger last year when Elijah lost his job as a chef during the pandemic. Soon after opening in their town, Tarpon Springs passed an ordinance that banned trucks from downtown unless they were owned by a brick-and-mortar restaurant. In May, Elijah and Ashley, represented by the Institute for Justice (IJ), sued the city in Florida court.
Following Elijah and Ashley’s widely covered lawsuit, Tarpon Springs changed its tune and said that independent food trucks could operate in the city but only if they “temporarily re-branded” by using the name of the business at which they were operating. Forcing an otherwise legal business to use someone else’s name to operate is a blatant free-speech violation. Doing so also robs Elijah and Ashley of the opportunity to build their brand, which is critical to success in the food service industry. Unfortunately, the trial court’s decision ruled that Elijah and Ashley cannot modify their suit to bring the free-speech claim until they have actually suffered the harm of using someone else’s name.
“Tarpon Springs should not be able to escape the scrutiny of the courts by substituting one constitutional violation for another,” said IJ Attorney Ben Field. “SOL Burger should be able to operate on the private property they are invited onto and operate under their own name. We hope that the court of appeal will take the free-speech violation seriously.”
“It is textbook constitutional law that someone whose speech has been chilled can bring a free-speech claim,” said Justin Pearson, IJ’s Florida Office Managing Attorney. “Unfortunately, the trial court disagreed. We look forward to the appeal.”
“It is frustrating to have Tarpon Springs constantly changing the rules and finding new ways to make it hard on our small business,” said Elijah. “We just want to focus on making great burgers and building our brand. Hopefully our appeal will get serious consideration and we’ll be able to operate proudly in our town under our own name.”
The Institute for Justice has successfully challenged restrictions on the economic liberty of food trucks to operate across the nation through its National Street Vending Initiative. IJ has successfully challenged unconstitutional food-truck restrictions in Fort Pierce, Florida; Carolina Beach, North Carolina; South Padre Island, Texas; and other cities across the U.S.