Food truck fight: Louisville officials ordered to pay up for withholding records

Several current and former Louisville Metro Council members must pay thousands in penalties and legal fees after a judge ruled they violated Kentucky's open records law in a case involving food truck regulations.

Jefferson Circuit Judge Eric Haner ruled Wednesday the Institute for Justice, a law firm based in Arlington, Virginia, that had represented several Louisville food truck owners over the years in battles with the city, can recover $4,600 in statutory penalties and $9,263.50 in attorney fees from the four current and ex-council members.

Metro Government typically pays judgements in cases against employees.

IJ attorneys had estimated that the city could have been forced to pay over $2 million in penalties and fees, but Haner wrote Wednesday the council members "raised legitimate concerns about whether the amount of attorney's fees sought to be recovered by IJ is reasonable."

Haner noted the $4,600 in statutory penalties represents $100 for each of the 46 days between a Kentucky Attorney General's Office ruling on June 10, 2019, requiring the council members to release emails and the council members first producing the responsive records on July 26, 2019.

Haner found it "appropriate to award IJ substantially less than the maximum amount of penalties authorized by KRS61.882(5)," or $25 per day per record, "because the record shows that it has not consistently asserted itsrights with the sort of diligence that would suggest an extraordinary amount of prejudice stemming from the initial delay" from the council members, though the judge added it "in no way excuses the Councilmembers' wrongdoing."

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The $9.263.50 in attorney's fees was also "reasonable," Haner wrote, noting that although the institute showed it incurred $18,748 in fees in 2019, several of the 39 billing items for that time period "relate to seemingly interminable conferences, communications, edits and reviews" by various legal professionals at the firm representing IJ.

Robert Frommer, senior attorney for IJ, told The Courier Journal the judge's decision "is an important ruling for transparency, and we look forward to getting our money."

In July 2019, the institute sued current Metro Councilmen Scott Reed, R-16th District, and Pat Mulvihill, D-10th, and now-former Metro Council members Brandon Coan and Barbara Sexton Smith, both Democrats who represented District 8 and District 4, respectively, to try to obtain unredacted emails between them, business owners and residents related to proposed regulations on food trucks operating in the city.

Frommer said Coan and Sexton Smith, in particular, were the most to blame.

"The judge’s ruling is a clear condemnation of Brandon Coan’s and Barbara Sexton Smith’s attempts to hide their corrupt behavior, which was in violation of a federal consent decree," Frommer said. "...They almost immediately started to work behind the scenes with restauranteurs and other businesses to try to throw the trucks off the streets and when we found out...they tried to hide the evidence. The judge held them to account."

The four council members initially did not return requests for comment or declined to comment.

But Coan later told The Courier Journal after this story first published that Frommer's statement "pertaining to me is totally unfounded."

"To call anything I did 'corrupt' is outrageous. I fully cooperated with the Institute for Justice's open records request," Coan wrote. "I timely turned over all my emails to the County Attorney's Office, who represented the Metro Council members, and they were in charge of producing them. Nothing in the judge's opinion supports what Mr. Frommer stated about me. Apparently, he is disappointed because the Court awarded less than 1% of the amount he was seeking."

After tweaks to food truck rules were proposed by the four council members in 2018, the Institute for Justice wrote a letter to Mayor Greg Fischer's office that argued the changes were introduced "to destroy the viability of mobile vending in Louisville in order to serve the private, financial interests of politically-connected restaurateurs."

The proposed changes included requiring food trucks to sell from designated "zones" at specific times, with Coan previously emphasizing that "not every parking meter in the city is safe and should be a place for trucks." But food truck operators and some of their customers expressed confusion and frustration, arguing the new rules would have harmed or even put them out of business.

The Institute for Justice filed open records requests for emails between the council members, business owners and residents, and the Kentucky Attorney General's office ruled in May 2019 that the lawmakers could not withhold the records. But the names of individuals and business owners who were lobbying council members for specific rules were redacted, leading the legal group to challenge the redactions in court.

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Haner ruled the redactions are illegal and noted the state's open records law and legal precedent allow the public to learn the names of citizens who send messages about legislation to elected officials.

Frommer said IJ is still seeking all of the unredacted records. But it had previously published online 960 pages of the redacted messages involving the council members that expressed both support and opposition to some of the regulations.

A set of March 2018 emails featured Sexton Smith and a self-described group of "business and real estate owners," with one member threatening to “go to [the] media and name names” if new regulations were not implemented soon, and the group offered regulations they wanted to see, including upping the on-street parking rental cost from $15 to $150. (None of the group's proposals made it into final legislation.)

“I am prepared to do my part with the legislative process and/or modifications in how Metro administers permits,” Sexton Smith wrote in one reply. “I need to know exactly what the group wants.”

How this food (truck) fight got here

The debate over food truck regulations continued into 2019, when Metro Council finally approved an ordinance that implemented some more restrictions on food trucks and "mobile vendors" while loosening other rules. The changes included ending a restriction on noise from generators and how much of a city block could get reserved for vendors downtown while expanding criminal conviction reporting requirements to all employees.

The battles stretched back further, as food trucks and Metro Government had clashed in 2017 over a seven-year provision that kept "mobile vendors" 150 feet from brick-and-mortar restaurants with similar menus.

The brick-and-mortar eateries argued rules helped prevent unfair competition from food trucks that could set up anywhere without the same costs. But food truck operators, two of whom would file a federal lawsuit, argued the regulation stifled their industry.

The regulation was later repealed. In June 2018, the city reached a consent decree that ended the federal lawsuit and required Louisville not to "treat mobile unit vendors differently than other commercial vehicles" allowed to operate in the city.

This story has been updated.

Former Courier Journal reporter Darcy Costello contributed to this story. Reach Billy Kobin at bkobin@courierjournal.com.

This article originally appeared on Louisville Courier Journal: Louisville food truck lawsuit: Metro Council members told to pay up