SOUTH PADRE ISLAND – The 13th Court of Appeals determined yesterday that a lawsuit accusing South Padre Island of keeping Food Trucks from setting up merits oral argument.
South Padre Island banned mobile food vendors from serving crowds of hungry beachgoers until 2016. When the city finally allowed food truck entrepreneurs in, local restaurant owners complained. In response, the city council rewrote the ordinance and added two provisions.
The provisions capped the number of food truck permits at 12 and required applicants to obtain the signature of a local restaurant owner.
Representing food truck vendors, the Institute for Justice sued the city, arguing the restrictions are unconstitutional and anticompetitive.
Following a ruling in favor of the plaintiffs, the city appealed.
Court records show that on May 14 the city filed a letter brief stating that some of the plaintiffs in the suit, the Avalos appellees, voluntarily closed their food truck to pursue their vocation in music education.
The city’s letter also states that it anticipates approving an ordinance that will increase the food truck permit limit to 18.
“Appellant City urges this Court to vacate the trial court’s orders favorable to the Avalos Appellees and direct the trial court to dismiss their claims for lack of jurisdiction,” the letter states.
The 13th Court has submitted the case for oral arguments on Sept. 16 at 10:30 am, court records show.
Case background
In late November, a district court struck down the city’s permit cap and what the institute calls a “restaurant permission scheme” allowing local eatery owners to act as gatekeepers to food truck permits.
On Dec. 14, the city, which continues to enforce the restrictions, appealed. Two months later, the city filed its brief on Feb. 12, arguing that the city’s code is “reasonable and protects public health.”
On appeal, the city argues that limiting the number of food trucks in South Padre Island and requiring them to be green lighted by local restaurants “is reasonable and protects public health.”
“The permit cap was reasonable,” the brief states. “In small or rural cities, resources get stretched which presents substantial public health risks. Some regulation is needed to control the risk, which be done via zoning or capping permits. By not capping permits, the City could be creating a public health risk when resources get stretched thin.”
Court records show the food truck vendors filed a response on March 24, asserting that they “simply want a fair opportunity to vend to customers on South Padre Island.”
“The Permit Cap and Restaurant Permission Scheme relate to one purpose alone—protecting local restaurant owners from food-truck competition,” the response states. “The Court should thus find that the actual purpose of the Permit Cap and Restaurant Permission Scheme is illegitimate economic protectionism and declare both unconstitutional.”
The city is represented by attorneys Roger Hughes, Adams & Graham, and Arnold Aguilar, Aguilar & Zabarte.
Institute for Justice attorneys Arif Panju and Keith Diggs represent the food truck vendors.
Appeals case No. 13-20-00536-CV