SOUTH PADRE ISLAND — It appears that protocols for food truck entrepreneurs hoping to operate in this coastal city still remain uncertain despite recent court rulings.

In December 2020, Cameron County District Court Judge Arturo Cisneros Nelson struck down South Padre Island’s food truck permit cap and restaurant permission requirement.

This January, South Padre Island Mayor Patrick McNulty addressed Nelson’s decision and stated that the city would appeal the ruling denying the city’s plea to the jurisdiction.

He also stated that the appeal would provide clarification and that the city’s Mobile Food Ordinance would remain in effect until orders were issued by the Court of Appeals.

On Thursday, the Institute for Justice (IJ) asked the Texas Supreme Court to intervene and force South Padre Island to comply with Nelson’s court order and the Texas Constitution.

Since February 2019, IJ has been challenging the city’s Mobile Food Ordinance on behalf of SurfVive food truck owner Erica Lerma and the Brownsville-based Chile de Árbol food truck, which is operated by brothers Anubis and Adonai Ramses Avalos.

“Both food trucks were forced to the sidelines for over two years and could not operate under the city’s permitting scheme,” IJ’s press release states. “After taking the city to court to vindicate their constitutional rights, they won in the district court after proving that the two restrictions had nothing to do with protecting health and safety, but rather only the profits of local restaurant owners who wrote the ordinance.”

Brothers Anubis and Adonai Ramses Avalos, co-owners of Chile de Árbol, a Brownsville-based food truck, are one of two clients of the Institute for Justice’s lawsuit made against the City of South Padre Island’s food truck regulations. Courtesy: Institute for Justic

Arif Panju, Managing Attorney of IJ’s Texas Office, stated that when a law is ruled unconstitutional by a Texas court under Article I of the Texas Constitution, that law is immediately void and unenforceable.

“By continuing to fence out food-truck competition at the behest of local restaurant owners, the city is not only defying the authority of Texas courts, but also preventing food truck vendors from earning a living,” Panju stated. “Now the city must answer to the Texas Supreme Court.”

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

“The city did not appeal or seek to stay the loss,” the press release states. “Instead, it continued enforcing both its cap on food truck permits (ensuring no more than 12 food trucks on the island) and its restaurant-permission scheme, which says that food truck owners must obtain approval of a local restaurant owner to qualify for a permit.”

As of press time Friday, the city did not return a request for comment.