Food truck files federal lawsuit against town of Parksley, Councilman Nicholson, saying closure unconstitutional and retaliatory

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Food truck owners Theslet Benoir, left, and Clemene Bastien have filed a federal lawsuit against the town of Parksley. Courtesy photo

BY CLARA VAUGHN, Eastern Shore Post —

The owners of a Parksley food truck have filed a federal lawsuit against the town of Parksley and one member of its town council, alleging the town’s decision to shut down the business was unconstitutional and retaliatory.

Clemene Bastien and Theslet Benoir, who own Eben-Ezer Haitian Food Truck on Bennett Street, filed a lawsuit in the U.S. District Court for the Eastern District of Virginia, in Norfolk, on Tuesday, Jan. 23.

They are pursuing the case with Dylan Moore and Justin Pearson of the Institute for Justice, a nonprofit, public interest law firm.

“They didn’t want to (file a lawsuit) initially,” Moore said Tuesday, but “the harassment and the bullying … just kept coming.”

“It’s not the government’s job to pick winners and losers in the marketplace. That choice belongs to consumers,” Pearson said previously.

Bastien and Benoir are seeking compensation for the financial loss to their business, which remains closed, as well as for attorney fees in the lawsuit.

“We don’t have a dollar value to put on the damages right now … (because) it is growing each day” that the food truck is closed, Moore said.

The lawsuit claims Parksley Town Council member Henry Nicholson trespassed on the food truck owners’ private property and cut the water line to their mobile food unit.

Parksley Mayor Frank Russell said he has “absolutely no comment” on the lawsuit, which he had not yet received Tuesday afternoon.

Nicholson, who is being sued individually and in his official capacity as a town councilman, also declined comment.

“I’d be a fool to comment on anything anymore anyway because my words get twisted around,” he said.

“People turn it around and try to make it racist.”

The lawsuit also claims Parksley retaliated against Bastien and Benoir for seeking legal advice after they received a letter from Attorney André Wiggins, on behalf of Parksley, requesting their food truck “cease operation immediately.”

That letter, dated Nov. 1, said Parksley’s Town Zoning Ordinance does not name food trucks in uses allowed by-right in the town’s commercial district.

It stated individuals violating the ordinance can face fines of up to $250 and imprisonment in the county jail for up to 30 days for each day they break the town code.

Bastien and Benoir opened the truck last summer after paying $30 to Parksley for a one-year business license on May 14, 2023.

It was the first food truck to arrive in town, leading the town council to grapple with how to manage a new type of business.

On Oct. 11, the council voted to pass an ordinance limiting mobile food vendors to selling their fare in town only during special events such as festivals that the town council had approved or sponsored, though the group was divided on the new rule.

The town council repealed that law Nov. 13, but the ordinance drew attention during its short time on the books — including from attorneys at the Institute for Justice.

The suit claims Parksley’s town government unconstitutionally retaliated against the business owners; and that Nicholson trespassed on their private property. It sues the defendants under the First, Fourth, and 14th Amendments to the U.S. Constitution, the Civil Rights Act of 1871, and Virginia tort law, among others.

The town and Nicholson will be served with the legal notice within several days, and have 21 days to respond, though they may request an extension.

Wiggins did not return the Post’s request for comment by press time.

“I’d like this lawsuit to be an example to the city,” Bastien said in a translated interview with the Institute for Justice.

“When you’re the mayor, you’re the mayor of all people, and you serve all people,” she said.

Visit https://ij.org/wp-content/uploads/2024/01/ECF-1-Complaint.pdf to read the suit filed against the Town of Parksley and Nicholson.

Visit https://ij.org/case/virginia-retaliation/ for more background on the case from the Institute for Justice.

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