Eldon’s mobile vendor ordinance continues to freeze out businesses

Local ice cream truck prompts BOA to reevaluate

Debate over a controversial ordinance concerning mobile vendors in the City of Eldon resurfaced at the Board of Aldermen’s Feb. 25 meeting after the board voted not to change it last October.

While wrapped in a package of small-town charm with the support of many community members, its latest contender – the city’s family-owned ice cream truck – could be just daunting enough to effect a change.

The ordinance, which the board passed in December 2012 to revise section 605.190 of the city’s municipal code, states, “No person(s), business or entity shall be allowed to sell or solicit within the city limits of Eldon for the purpose of selling food or other like product, from a vehicle, cart, stand, wagon, mobile unit, portable unit, truck, trailer or other like vehicle.”

According to Board of Aldermen discussion this past October, the intention behind the ordinance was to protect permanent, established businesses in the city from a more fly-by-night variety of vendors who had been coming into town during the daytime to sell food or other products from mobile vehicles.

Problems with the ordinance arose when Andy’s Hickory Pit Bar-B-Que, a food-service and catering business started in Eldon about 10 years ago, wanted to return to the city in its kitchen-equipped trailer after a brief move to Osage Beach. The owners’ request to have the the ordinance’s wording adjusted to accommodate their business operated from a trailer they intended to keep stationary was voted down at the Oct. 22, 2013, Board of Aldermen meeting due to concerns among some aldermen that it would “open the floodgates” for the city’s previous problem.

“Changing an ordinance for one individual business or one individual, to me, is a very bad policy,” said Alderman Sharon Harms at the time.

Four months later, other businesses are taking issue, as well, including Brain Freeze Ice Cream, a novelty ice cream truck that has operated in Eldon and surrounding communities since 2011. Lori Bartlett, who owns and operates the truck with her family, addressed the board at its Feb. 25 meeting after being notified that she could not renew her business license for 2014, despite being able to do so in 2013 after a city official assured her husband the mobile vendor ordinance did not affect theirs.

“An ice cream truck is the epitome of small-town America,” Bartlett said. “We often hear of how amazing it is that Eldon has an ice cream truck and from the older generation how it reminds them of their childhood. The ice cream truck really is a reminder to many of when life was simple, and it gives Eldon that small-town feeling and sense of community togetherness that people love.”

It’s not the city’s business to keep them from providing that service, she continued.

“It is not the city’s responsibility to control the market or to deter competition. That is for the consumer to decide,” Bartlett said. “A city cannot ban a legal activity but can regulate it to the benefit of the public at large, for example, making sure the business is safe, the business has insurance, they have a fire extinguisher, they are not blocking traffic, etc. It is a violation of my rights to free association, free speech, due process and equal protection to take away my right to make a living simply to help another business.”

Bartlett argued that Brain Freeze Ice Cream should qualify as one of the established businesses the city was trying to protect with the 2012 ordinance.

“In the process of wanting to help the local businesses, this ordinance is also putting locals out of business,” she said. “I have no doubt that when this ordinance was brought about and passed the intentions were good and everyone believed it would be a good thing for the city. I also do not believe that anyone intended to put the local ice cream truck out of business in Eldon, but sadly that it exactly what is happening.

“Wouldn’t you consider us to be an established business, as we had already been in business here for two years at that time?”

Bartlett also addressed a concern previously discussed by the board that some mobile vendors might not being remitting sales tax to the city as they should.

“We generate revenue for the city just like any other business here,” she said. “I have for you our business sales tax returns from 2011 through 2013 as proof that we have paid our sales tax as required by the state since being in business.”

After hearing her concerns, Mayor Ron Bly and the Board of Aldermen agreed the ordinance should be reevaluated as soon as possible, saying the issue would be on the agenda for the March 11 meeting.

“There’s always talk among the city council about economic development and how important that is … If they want to have a good reputation to get some economic development coming into our city, they don’t need to have the reputation that they are closing down small-town businesses,” said Alderman Kim Knopf, who supported finding a way to adjust the ordinance back when Andy’s Hickory Pit Bar-B-Que’s owners voiced their concerns. “I’m hoping that the people who are all in favor of economic development will take a look at this and realize that this is not in the best interest of our reputation as a city.”

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