09/17/2009: "Peddling Ordinance Lawsuit Filed"
(Attorney for Gary Franco holds press conference while SJC attorney Karen Vedder looks on)
Lopez farmer Gary Franco has suited San Juan County over the recently passed ordinance that controls “peddling” in Eastsound. The lawsuit was filed by the Institute for Justice, on behalf of Mr. Franco.
The suite alleges the intent of the ordinance is to protect “favored categories of vendors -for example, farmers who sell their own produce, ice cream trucks; and non profit and charitable groups.”
The complaint states “This is a constitutional lawsuit.” The filed complaint to the court, and an Institute press release, make it clear the suit is intended to obtain an answer to “the crucial question.. does Washington’s Privileges or Immunities Clause provide meaningful protection to the right to earn an honest living?”
At the heart of the matter is a question on the intent of the ordinance: Has the County passed an ordinance that singles out one class, or type of business, for special treatment. Michael Bindas is the lead attorney in the case, and stated the County Council took action to protect “brick-and-mortar business owners” only after some of them appeared before the Council and complained about vendors selling goods from public property. One property owner complained about those who “set up within thirty feet of the rental space that I can’t rent…and make a lot of money.”
The ordinance requires a vendor who wishes to use public places to obtain a use permit, pay a fee, and is subject to fines if found to be in violation of the ordinance.
As a part of obtaining a permit -and this is stated as one of the issues in the suit- the applicant must obtain “written consent of all business owner within 25 feet of the application site..” This means that one business owner has the right to deny another business owner the right to use public space without reason -or at least without stating what the reason might be.
It does not give that right to a member of the public, or to a non-business owner, but only to a business owner within 25 feet of a public space that a vendor wishes to use. For the attorney, this is just further evidence the ordinance is not legal.
Friday Harbor has had an out-right ban on the use of public property for vendors for years, but it has yet to be legally tested in a court of law.
The county case has the potential to end up in a Supreme Court, since it is being argued as a constitutional issue. If so, the County is going to have some more large legal bills.