reprinted with permission from Pacific Legal Foundation’s Summer 2022 Sword & Scales magazine – Pacific Legal Foundation has won 14 cases at the US Supreme Court.
Lunch at Ole Time Smokehouse
ON DAYS WHEN MARK SHIRLEY serves lunch at his food truck, Ole Time Smokehouse, he wakes up at 3:30 a.m. By the time most people in Farmville, North Carolina, are just getting out of bed, Mark’s barbeque has already been cooking for hours.
Good Carolina barbeque takes time.
“I cook the ole-timey way,” Mark says. He chops the skin up in his whole-hog barbeque. “Most modern places don’t do that.” He also makes barbeque chicken, baby back ribs, hot dogs, smokehouse dogs (fresh sausages smothered in sauce), and traditional sides like coleslaw, red potatoes, and string beans.
After cooking for eight hours, Mark drives Ole Time Smokehouse from Walstonburg—the 200-person town where he lives—a few miles down the road to one of his preferred lunchtime parking spots. He posts the day’s location on Facebook. When he starts serving, his customers are ready.
“I hear people talking to themselves, saying, ‘I’ve been waiting for this all week,’” Mark says.
Until last year, Mark’s best spot to serve lunch was right in downtown Farmville, the 5,000-person town just east of his home. He leased a parking spot for Ole Time Smokehouse near a downtown thoroughfare and served lunch to the weekday working crowd.
Ole Time Smokehouse was popular in Farmville—until the town kicked Mark out.
Life in a small town
FARMVILLE IS THE KIND OF PLACE where you can’t go shopping “without seeing half a dozen people you have to stop and talk to in the grocery aisle,” Mark says.
There are good and bad parts to life in a small town like Farmville.
Here’s the good part: When Mark first opened Ole Time Smokehouse, word spread quickly through Farmville that his barbeque trays were a must-try. People told their friends and coworkers. Within six months of opening the food truck, Mark had a regular lunchtime crowd and was catering church events, weddings, and family reunions in the evenings and weekends.
“I’ve cooked all my life for friends and family,” Mark says, “and it’s a passion of mine that I’ve always enjoyed.”
That support meant everything to Mark. Ole Time Smokehouse was the fulfillment of a high-risk dream: He’d left a stable salary as general manager of a car dealership just outside Farmville to try to make a living with his food.
“I’ve cooked all my life for friends and family,” Mark says, “and it’s a passion of mine that I’ve always enjoyed.”
He invested his savings into Ole Time Smokehouse and started serving his barbeque, “not knowing if I would go bankrupt and lose every dime I’d ever saved my whole life pursuing this,” he remembers.
The town of Farmville made his food truck a success. Six months after he opened, Mark told a North Carolina newspaper that he was humbled at the response. “It has been successful beyond my wildest dreams,” he said.
But here’s the bad part to life in a small town: Everyone is connected—and if you’re not an insider, you can quickly find yourself an outcast.
Changing the rules
Mark Shirley serving customers at Ole Time Smokehouse.
ON APRIL 5, 2021, Farmville’s Board of Commissioners voted unanimously to change the town’s food truck ordinance.
Previously, a food truck operator was required only to pay a $100 annual fee and park no closer than 100 feet from a brick-and-mortar restaurant’s front door. But the new rules increased the fee to $75 per day of operation, with a maximum of two days per week allowed.
What had cost Mark $100 annually would now cost $7,800—an increase of 7,700%.
The new rules also forced food trucks to park more than 100 feet from a brick-and-mortar restaurant’s property line—not just 100 feet from their front door. The privately owned parking spot that Mark had been leasing in Farmville was close enough to a restaurant’s property line that it now violated the ordinance.
Mark says Farmville’s sudden regulatory shift put him in an “extremely frustrating and emotional” position.
“I had left a steady income, invested all of my savings and everything into this business, and had now been operating for a year and a half and built up this huge base of customers,” he says. “And now all of a sudden, what I could think of in the back of my mind was, ‘I’m going to have to start over from scratch.’” He was devastated. The ordinance change felt almost personal: It wasn’t like Farmville’s streets were crowded with food trucks. He was one of the few food trucks in town.
It felt like the town was targeting Ole Time Smokehouse.
Restaurants vs. food trucks
RUMOR HAS IT that a brick-and-mortar restaurant complained to Farmville town officials about Mark’s success.
It wouldn’t be the first time a restaurant owner complained about a food truck. Across the country, the traditional restaurant industry has been mounting a cold war against its footloose younger cousin, the food truck industry.
Food trucks are not a new phenomenon. “Lunch wagons” date back to the late 19th century, when vendors cut windows out of covered wagons and parked outside newspaper offices to sell sandwiches and pies to pressmen working at all hours. During the World War I era, pop-up barbeque stands were erected to feed workers in North Carolina cities like Charlotte and Salisbury.
But the contemporary food truck craze really started around 2008: The economic recession made low-capital food trucks an attractive option for talented chefs, while social media made it easy to share real-time locations and daily menus with customers. Food trucks suddenly became roving hot spots, generating customer buzz and fawning reviews that were once reserved for brick-and-mortar establishments.
To restaurant owners—some of whom are stuck with high rents and capital costs—the popularity of food trucks can be a sore spot. No one’s thrilled to discover that a nearby competitor is satisfying customers while paying a fraction of your costs. “There’s just not enough to go around right now,” a Brooklyn restaurateur complained to The New York Times in a 2011 article that asked, “Should Cities Drive Food Trucks Off the Streets?” Even restaurants that compete against each other seem to find common ground in opposing food trucks: In Detroit, two “Coney Island” hot dog restaurants that have been neighbors for more than 100 years both raised concerns about food trucks parking on their street to sell hot dogs.
Across the country, the traditional restaurant industry has been mounting a cold war against its footloose younger cousin, the food truck industry.
A common complaint about food trucks is that they don’t pay property taxes and aren’t rooted in their communities. There’s some truth there; however, food trucks do contribute to tax revenues by charging sales tax. And there’s evidence that food trucks help traditional businesses by bringing increased foot traffic to the neighborhoods they park in. Food trucks can even help activate or revitalize public spaces, playing a crucial and highly visible role in their communities. They’ve also inspired trends among brick-and-mortar businesses, like lunchtime to-go windows and mobile pop-ups.
Food trucks face their own disadvantages: They can’t provide customers with heat in winter or air conditioning in summer, or the comfort of tables and booths.
But some well-connected brick-and-mortar restaurants are convinced the playing field is uneven—and they’ve pulled political strings to make life more difficult for food truck operators like Mark.
‘Not in the clique’
EVEN THOUGH MARK has lived in the Farmville area his whole life, he doesn’t have the same influence with the town that brick-and-mortar restaurants do. Two of Farmville’s five commissioners are in the commercial real estate business with previous investments in downtown Farmville, including brick-and-mortar restaurants. Those two commissioners recused themselves from the vote on the food truck ordinance after a local attorney pointed out their conflict of interest.
By then, however, it was already clear what the board’s preferred outcome was. The rule change passed among the remaining commissioners 3-0.
“It’s very political, little towns,” Mark says, “and if you’re not in the clique, you’re not going to be successful. And that’s just not the way the United States should run.”
Now, instead of parking in downtown Farmville, Mark can only serve lunch to his Farmville customers from a parking lot two miles away across the town’s border. Some customers are so loyal that they drive out to meet Ole Time Smokehouse.
But the food truck is losing business by not being downtown.
Supporting food entrepreneurs
MARK IS A PROBLEM-SOLVER by nature. Anyone who specializes in barbeque has spent endless hours perfecting the right combination of smoke, spices, heat, and time. Pitmasters are not prone to giving up.
“My restaurant is on wheels,” he points out. “It would’ve been so easy for me to just say, ‘Well, to hell with it, I’ll just go to the next town and I’ll start over.’ But I’m not that type of guy.”
Pacific Legal Foundation is representing Mark in a lawsuit against the Town of Farmville. We argue the town is violating the North Carolina Constitution’s “fruits of their own labor” clause, which guarantees the right to earn a living.
Throughout our history, when we’re at our best, this country has given entrepreneurs the space they need to experiment, take risks, and compete in any industry of their choosing.
“[T]he Town of Farmville should not pick economic winners and losers,” we write in our complaint. Customers, we believe, should be able to decide for themselves where they want to eat lunch.
Mark Shirley’s case is, at its core, about a fundamental feature of American society: Throughout our history, when we’re at our best, this country has given entrepreneurs the space they need to experiment, take risks, and compete in any industry of their choosing. We don’t close doors to protect entrenched interests. We keep pathways open for men and women who are willing to bet on themselves and pursue the American dream.
That’s what Mark did. He could have stayed in his car dealership job indefinitely—but instead he became his own boss, taking a chance on the belief that people would love his barbeque.
And he was right.
For millions of entrepreneurs like Mark, cooking is a means of economic opportunity and empowerment—from immigrants who open street stands to stay-at-home mothers who sell baked goods. Food trucks, in particular, have been a boon for independent-minded entrepreneurs looking to leave unfulfilling jobs and take control of their lives through food. Probably the most famous food truck entrepreneur is Los Angeles chef Ron Choi, the first food truck operator to be named a “Best New Chef” by Food & Wine magazine. Choi, the son of Korean immigrant entrepreneurs, learned how to cook after dropping out of law school; then, after years toiling as a hotel chef, he launched his Korean-Mexican food truck and became a culinary star. (Choi’s story inspired the 2014 Jon Favreau movie Chef.)
It’s this vibrant culture of entrepreneurship and economic liberty that the town of Farmville is stifling with its food truck ordinance.
And that’s why Mark is fighting back.
“If I had just left quietly, nothing would change in the town,” he says. “The next guy that came along that was just like me will get treated the same way.”
The tradition of barbeque
THE IRONY OF MARK SHIRLEY being pushed out of Farmville over a barbeque food truck is that barbeque is precisely the kind of food that’s meant to bring people closer together.
Neighborhoods host backyard barbeques on weekends. Towns host public barbeques every July 4. Barbeques are social, casual, and outdoors—everything that Ole Time Smokehouse is.
On its town website, Farmville calls itself “the friendliest little town in the state” and claims that “[e]mbracing progress while holding on to small town values makes Farmville a great place to live, work and grow.”
That’s the experience Mark had in Farmville—until the Board of Commissioners exiled him to the outskirts of town.
If we win our case and Mark’s able to bring Ole Time Smokehouse back to downtown Farmville, he’ll be bringing the best traditions of American barbeque with him—not just the tradition of mouth-wateringly delicious food, but also the tradition of being inviting and welcoming to all. ♦