SOUTH PADRE ISLAND — The future of food truck entrepreneurs hoping to operate in this coastal city still appears to be in a bit of limbo.

The Institute for Justice (IJ) filed a motion in the Thirteenth Court of Appeals on Thursday, asking the court to prohibit the City of South Padre Island from enforcing two food truck-related restrictions that were recently declared unconstitutional and permanently enjoined.

On Dec. 8, 2020, state District Judge Arturo Cisneros Nelson struck down South Padre Island’s food truck permit cap and restaurant permission requirement.

According to a press release from IJ, the district court ruled that the city violated the Texas Constitution when it forced food truck owners to get permission from local restaurant owners before being eligible for a food truck permit, and by making it illegal for more than 12 food trucks to open for business on the Island.

“Astonishingly, South Padre Island’s city government continues to enforce both unconstitutional restrictions despite the ruling,” IJ’s press release states.

City’s response

On Jan.14, Mayor Patrick McNulty addressed Nelson’s decision regarding the city’s mobile food ordinance in a statement.

McNulty stated that the city will appeal Nelson’s ruling denying the city’s plea to the jurisdiction.

He further stated that the city, along with its attorneys, believe the decision to appeal will be in the best interest of the city, its citizens and residents, and will provide 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.

“This appeal process, which Texas Municipal League counsel believes has a good chance of success, will also provide needed clarification of the district judge’s preliminary ruling,” McNulty stated. “No written findings, conclusions or reasoning was given by the district judge, and no judgment or order of any kind was entered granting specific relief, damages or instructions to the city.”

According to McNulty’s statement, the Mobile Food Ordinance will remain in effect until orders are issued by the Court of Appeals.

“The city has not violated any court orders and has always fully complied with the law,” McNulty stated. “The health and safety of city residents and visitors will always remain a priority.”

IJ’s press release states that despite the city’s public statements, it has not appealed the court’s ruling.

“It appealed only a separate ruling rejecting its meritless argument that Texas cities are immune from the Texas Constitution,” IJ’s press release states. “Nor has the city asked any Texas court to suspend Judge Nelson’s judgment.”

According to IJ’s Texas Office Managing Attorney Arif Panju, the city disregarded its own citizen’s constitutional rights and a lack of transparency should concern everyone.

“It is astonishing that we had to ask the court of appeals to order what the district court already made clear — the city’s food truck permit cap and restaurant-permission scheme are unconstitutional and therefore unenforceable,” he stated. “By continuing to enforce both restrictions, the city and its officials are violating a court order while flouting the authority of Texas courts and the Texas Constitution.”

In Feb. 2019, IJ challenged the city of South Padre Island’s restrictions on behalf of food truck owner SurfVive, which is a local nonprofit spearheaded by Erica Lerma, as well as the Brownsville-based Chile De Árbol food truck that is operated by brothers Anubis and Adonai Avalos.

According to IJ’s press release, both food trucks were forced to the sidelines and could not operate under the city’s permitting rules.

“They won in the district court after proving that the two restrictions do not protect health and safety, but rather only the profits of local restaurant owners who helped write the ordinance,” the press release states.

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