By Gaige Davila
The City of South Padre Island will continue enforcing its mobile food vendor ordinances, even after a district judge ruled them unconstitutional.
In a statement, South Padre Island Mayor Patrick McNulty said the city is appealing their plea to the 138th District Court, headed by Cameron County District Court Judge Arturo C. Nelson.
“The City, along with their attorneys, believe this decision to appeal will be in the best interest of the city, its citizens and residents, and will provide much-needed clarification of the City’s Mobile Food ordinance and a municipality’s authority to regulate and enforce sanitation and public health and safety requirements, as allowed under State law,” McNulty’s statement reads.
McNulty states that the city’s council and administration “strongly desire(s) to put this matter behind them,” noting that current city council members were “mostly not involved” in the mobile food ordinance’s enactment.
Nelson’s ruling declared portions of South Padre Island’s mobile food vendor ordinance unconstitutional, specifically the city’s requiring mobile food vendors getting written permission from a brick-and-mortar restaurant owner before receiving one of 12 operating permits; and that no more than 12 permits can be issued to mobile food vendors.
McNulty said the court did not give the city “written findings, conclusions or reasoning,” regarding the ruling, and that “no judgement or order of any kind” was given for the city to grant relief or damages. In the statement, McNulty said that the city has not violated any court orders.
McNulty said the city will continue enforcing the ordinances until “further orders” are issued by the Thirteenth Court of Appeals.
The lawsuit stems from nearly two years of litigation between the city and the owners of the Chile De Árbol and SurfVive food trucks who sued South Padre Island for engaging in “economic protectionism,” according to the lawsuit.
The Avalos brothers and SurfVive, and their attorney Arif Panju, Managing Attorney for the Institute for Justice law firm, will ask the court to intervene. The Thirteenth Court of Appeals can order the city to stop enforcing the ordinances declared unconstitutional by the district court, Panju said.
If the city continues to enforce the portions of the ordinance deemed unconstitutional, they would be violating a court order, according to Panju.
“(The city) asserts that its appeal is designed to obtain clarity about the unconstitutional food-truck permit cap and restaurant permission scheme, while at the same time failing to reveal that its appeal cannot present that issue because the city is not appealing the district court’s order resolving the constitutional issue,” Panju told the PRESS, saying McNulty’s statement “misleads” the public. “The City appeals only a separate court order rejecting its meritless argument that Texas cities are immune from the Texas Constitution.”
Cameron County’s 138th District Court denied the city’s plea on Nov. 30 last year.
City of South Padre Island spokesperson Nikki Soto directed the PRESS’ questions to their representing attorneys, Aguliar & Zabarte. The firm did not respond to PRESS’ inquiry for comment by press time.