Live And Let Fry
Live And Let Fry
My defense of "churro ladies", home-based businesses, and small-scale commerce
I’ve got a recent piece in Discourse Magazine, returning to this question of informal, small-scale sidewalk commerce. I guess this is probably my most libertarian issue. The more I think about it, the more I think it’s absurd and almost insane that we’ve squeezed out enterprises like street vending and home-based businesses, with zoning and other regulations.
I mean that basically literally:
Nobody would defend a law that says all people must wear a pair of inside-out polka-dot underwear on their heads before they leave their house and enter the public street. Not only would such a law be unconstitutional, but it would be insane.
The idea of so tightly regulating so simple and universal and ancient a phenomenon as selling food out of a cart or stall on the street at crowded spots in the city is an insanity of the same order and degree. But those of us who do not need recourse to such hardscrabble opportunities have, unfortunately, made our peace with it.
What inspired this one was the immigrant women selling cut fruit on the sidewalks in New York City who I saw during my recent visit. I have a much longer set of thoughts on New York City that I’ll be putting together—I liked it now, I didn’t used to like it years ago, and part of the reason I liked it was because it exceeded expectations based on all the anti-urban tabloid stuff you see.
I’ll expand on this in that later piece, but I get the sense that a lot of the sentiment over these things is disconnected from the actual thing. Almost as if women selling fruit on the sidewalk in New York City has nothing to actually do with women selling fruit on the sidewalk in New York City, and any of the questions over whether and how that activity should be regulated, and rather about, you know, Joe Biden and the border and Democrats. Fine, but one of the problems with nationalizing and culture-warring everything is that we abstract real, on-the-ground issues and almost seem to forget there is an actual issue underneath all of that other stuff.
That issue being this:
This question of the hyper-regulation of vending is a microcosm of a larger phenomenon: that America’s combination of zoning codes and laws regulating commerce have, in effect, banned cities, as anybody before about the 1930s would have understood them. Or to take it even further, as small North Carolina builder Aaron Lubeck did on Twitter, these regulations have sterilized cities. We have imposed these rules not merely on new developments but on existing urban fabric that makes it impossible to use that fabric in the manner for which it exists in the first place.
In legally prohibiting much of what a traditional city is, we have also foreclosed much of the opportunity that cities once provided to the least fortunate, messy and uneven as that opportunity may have been. From our position of affluence, we seem to think that we can get rid of poverty by getting rid of the things we associate with poverty. And, relatedly, we mistake those things associated with poverty for things that generate poverty, rather than being the means by which poor people can lift themselves out of poverty.
We do this with public transit, with street vending, with small businesses of all sorts (especially home-based businesses), with tiny apartments and single-room occupancies, with tiny vehicles. We imagine that in taking these things away or making them frictional, difficult and artificially scarce, the need for them—or the people who need them—will somehow disappear. This is like teaching a baby to chew by pulling out his teeth, or teaching a physically disabled person to walk by taking away his crutches.
Read the whole piece: there’s more, including the idea that absurd laws are very bad because they put following the law in tension with common sense. I think crime is a serious matter, and because of that, we should be careful which activities we slot into that category.
But increasingly this is a big part of my thinking about urbanism. Urbanism is one part land use and at least one part commerce. Density is a means of enabling and centralizing opportunity. Cities can be engines for people with very little to lift themselves up. But you have to allow them to do that. The rules that govern land use and commerce and their intersection—home-based businesses or accessory commercial units, for example—seem to assume that nobody will need recourse to these things. When I say “tiny apartments and single-room occupancies, with tiny vehicles,” I mean the sorts of tiny apartments that make it possible to live in Tokyo for a few hundred dollars a month, or the tiny trucks that allow people in Europe to run mobile fish markets.
I don’t see deprivation; I see access. We talk about picking yourself up by your bootstraps, and then we ban bootstraps because “they’re for poor people.”
At the Strong Towns conference in Cincinnati last month, one of the presenters—I think it was Charles Marohn himself—asked the audience how many of them would like to live in a 500 square foot house or apartment. A couple of hands out of a couple hundred went up. He then asked, how many of you have lived in such a unit? And a whole bunch more hands went up.
I’m just going to belabor this by pulling a bit from another piece for Discourse, about inexpensive cars, and by analogy starter homes:
The other element, of course, is consumer preference. But whose preferences, and at what stage of life? One of the problems with the disappearance of the starter home is that it makes it harder for young people and young couples to get a foothold. Many people fear that zoning reform would reduce the supply of single-family homes, which many people eventually want. Fair enough. But eventually is the key word here. Having a prize at the top of the ladder is no use if you can’t reach the bottom rung and start climbing in the first place. And that’s exactly what squeezing out the supply of basic, affordable homes does….
Why are we losing the bottom rung of the ladder in housing and cars alike? Why do these things get bigger over time, privileging those with means and disadvantaging those who are perfectly willing to work their way up but are no longer reasonably able to? The answer isn’t that nobody wants a small car or a small house. Or, rather, we may not want them but some people, and almost all of us at some point in our lives, need them.
This is a big part of what urbanism has to be about. It has to be about un-banning opportunity, and in a real sense un-banning cities. Some YIMBYs use the phrase “Legalize housing,” and some people think that sounds weird. What we mean by that is, re-permit the process by which our legacy cities came to exist. That process was in large part just a whole lot of normal people doing lots of little things, and building a city together across time.
I think we think that in a rich country, we can shortcut that work; we’ve “graduated” from it. We don’t want to be reminded of the hard times in our past or in our country’s past. But someone will always be going through that, and someone will always need to grab onto that last rung of the ladder and climb their way up. We should not be embarrassed by this. We should not view it as a nuisance.
We should look long and hard, and see ourselves.
Related Reading:
Thank you for reading! Please consider upgrading to a paid subscription to help support this newsletter. You’ll get a weekly subscribers-only piece, plus full access to the archive: over 1,000 pieces and growing. And you’ll help ensure more like this!
I can actually speak to this issue from a position of expertise: I used to work for the city agency that regulated street vending. You're missing a lot of the problems unregulated street vending can pose. Some of those issues are noted elsewhere in the comments (health risks, mostly), but you're missing the difference between dirty restaurants (I read a lot of those reports, too) and dirty street vendors - a restaurateur makes significant investment, often off borrowed family money, in making sure that his restaurant stays in business. If he is found in violation of health codes often enough, he can lose his license, as well as his (or his family's) life savings. if the churro lady gets a violation, she is going to ignore the fine, because she never had a license to lose in the first place, and if a day's worth of product and her shopping cart get confiscated? It's not the end of the world for her. When entrepreneurs have significant skin in the game, they're more likely to follow the rules that protect their customers.
Also, it's not really zoning that prohibits street vendors (food or otherwise) from setting up shop on the sidewalk, or not strictly speaking. In a city as busy as NYC, all public space is at a premium, and there is significant competition for it. The city can dole out permits in places where there it deems there is enough room for a street vendor to set up shop, but not where it is so crowded that a cart will block pedestrian flow. Of course, vendors want to be where there is the most foot traffic, so there's where the friction arises, and when there's a traffic jam on the sidewalk, it's most likely because an illegally sited vendor has taken over the public way for his personal business.
Another issue, beyond crowding, is that there are some places we just don't want vendors everywhere. Parks, for example. The well-spread-out hot dog carts? Sure. But t-shirt vendors all over Sheep Meadow? Nope. And no one wants to be pestered on the subway by vendors, both because of crowding (looking at you, churro lady) and because in subway cars you become a captive market, unable to avoid the endless sales pitches. Even libertarians want a break from in-your-face commerce from time to time, no?
99% Invisible's latest podcast episode chronicles the "leaf blower wars" in Los Angeles. It's about the tension between elites/environmentalists who hate the noise/pollution and gardeners who rely on the machines to make their living. Though the episode doesn't frame it this way, it draws out a kind of NIMBYism against small-scale commerce. People want things to be pristine, but they don't want the noise—and they don't consider what the gardener will do when he doesn't have a huge time- and labor-saving device to work with anymore.
Related to the churro ladies, some of the other commenters bring up valid points: health concerns, unfairness toward brick-and-mortar restaurants that have to comply with all sorts of other rules and regs, rights of way and public access concerns. The health code regime in NY is another instance of its anti-small-business bias: it's capricious and cumbersome and serves mostly as a tax on restaurants, with marginal health and safety benefits but higher prices for consumers. The right move is not to ban the churro lady but to reform the health regime with a bias toward creating more economic opportunity, not punishing it. Of the objections, I think only the public space concerns are valid, which I think is solvable if, again, the orientation of the city is toward creating opportunity—that is, fundamentally, what cities are about. Embracing that mental shift is what it will take for NY to become a City of Yes.