SOUTH PADRE ISLAND – The city of South Padre Island recently told the 13th Court of Appeals that a claim concerning food truck restrictions is moot.
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.
On Jan. 10, the city filed another letter brief, stating all food truck permits expired at the end of December and that it notified appellees’ counsel that permits might be available, “though SurfVive is the only entity potentially in business,” because the current applications were less than the permits that would be available in January.
The city letter states that they may get a permit without any local restaurant support, but that the appellees indicated no interest in pursuing or receiving a permit, “which would reflect that their claim is moot or that they are merely seeking an advisory opinion.”
Court records show the appellees responded to the following day, filing a letter brief on Jan. 11 that states the city’s letter brief “raises a meritless mootness argument devoid of any analysis.”
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.
The city, which continues to enforce the restrictions, appealed, arguing that the city’s code is “reasonable and protects public health.”
“The permit cap was reasonable,” the city’s 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 can 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, 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