By Gaige Davila
After more than a year of litigation, a district court judge has declared South Padre Island’s food truck laws unconstitutional.
Cameron County 138th District Court Judge Arturo Nelson made the ruling on Dec. 8, in response to a motion for summary judgement filed on Sept. 22. Nelson ruled that parts of the city’s food truck ordinances relating to its permit cap and approval violated the Texas Constitution.
SurfVive, a South Padre Island-based food truck owned by Erica Lerma, and Chile de Árbol, a Brownsville-based food truck owned by brothers Anubis and Adonai Avalos, were represented by Arif Panju, managing attorney for the Institute for Justice, a non-profit libertarian law firm, against the City of South Padre Island.
“This is a victory under the Texas Constitution for entrepreneurs across Texas,” Panju said in a press release on the court decision. “The government cannot pass laws to protect politically connected insiders from competition— operating a small business in the current climate is challenging enough without the government picking winners and losers.”
In their lawsuit, the plaintiffs alleged the City of South Padre Island engaged in “economic protectionism” against food truck owners, citing the city’s laws allowing only 12 permits to food trucks wishing to operate on the Island and their needing to receive a “sign off” from a restaurant owner before opening.
A food truck ordinance drafted in July 2015 became city law in March 2016 via city council vote. Then mayor Barry Patel explored the idea months before the ordinance came to city council, assigning Environmental Health Director Victor Baldovinos to explore food truck ordinances in cities across the country, the PRESS reported in 2015. Initially, only 6 food truck permits were issued.
The ordinances challenged in the lawsuit were added after South Padre Island’s city council voted to “have a local group of restaurateurs get together and come up with ideas on modifying the proposed ordinance and bring it back to City Council for discussion and action,” according to minutes from an Aug. 5, 2015 agenda item. The group of local restaurant owners was designated as the Food Truck Planning Committee.
The lawsuit included notes from meetings held by the Food Truck Planning Committee, directly quoting South Padre Island restaurant owners who were worried that food trucks would impact their restaurants’ sales during the summer.
In February 2019, the Institute for Justice filed their lawsuit against the city. In December 2019, the Island’s city council hosted an “emergency meeting” to decide whether to change, renew or abolish the ordinance altogether. The decision was ultimately tabled, by request of attorney Ricardo Navarro, who is representing South Padre Island in the lawsuit.
Scott Bovee, owner of Porky’s Pit BBQ food trailer, who had difficulty opening a food truck from his brick-and-mortar location because of the city’s ordinance, welcomed the news of the district court’s decision.
“I’m interested to see what the city’s going to do about their scale for their permits, in light of all this new information,” Bovee told the PRESS.
Bovee recently acquired a food permit after another food truck surrendered theirs to the city. Porky’s Pit BBQ is now operating in the Coral Reef Karaoke Bar’s parking lot, where it will remain. Bovee is now considering a second food truck, amid the court’s decision, and whether the Island will change the fee for food truck permits, which are higher than those for restaurants.
Bovee has offered the city his assistance and the backing of the National Food Truck Association to South Padre Island if the city decides to change its ordinances.
“I’m hoping that if they do decide to do any kind of a small rewrite that they’ll this time try to keep food truck owners involved, instead of just getting a bunch of restaurateurs who don’t want food trucks,” Bovee said. “We want to be part of the solution.”
Denton, Navarro, Rocha, Bernal & Zech, P.C., the law firm representing the City of South Padre Island, did not respond to the PRESS’ request for comment by press time.
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