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South Padre Island Continues to Enforce Food Truck Laws Declared Unconstitutional by Texas Court

Food trucks ask Texas Court of Appeals to remind city that unconstitutional laws cannot be enforced

Brownsville, Tex.—Just six weeks ago, Judge Arturo Cisneros Nelson struck down South Padre Island’s anti-competitive food truck permit cap and restaurant-permission scheme. 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. Despite its public statements, the city has not appealed the court’s ruling declaring the permit cap and restaurant-permission scheme unconstitutional; it appealed only a separate ruling rejecting its meritless argument that Texas cities are immune from the Texas Constitution. Nor has the city asked any Texas court to suspend Judge Nelson’s judgment. Today, the Institute for Justice (IJ), which represents food truck owners, filed a motion in the Thirteenth Court of Appeals (Corpus Christi–Edinburg, Texas), asking the court to prohibit the city of South Padre Island from enforcing the two restrictions that Judge Nelson declared unconstitutional and permanently enjoined.

“The city’s disregard of its own citizen’s constitutional rights and its lack of transparency should concern everyone,” said Arif Panju, Managing Attorney of IJ’s Texas Office. “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. 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 February 2019, IJ challenged the city of South Padre Island’s anti-competitive restrictions on behalf of food truck owner SurfVive, a local nonprofit spearheaded by Erica Lerma, and the Brownsville-based Chile de Árbol food truck operated by brothers Anubis and Adonai Avalos. Both food trucks were forced to the sidelines and could not operate under the city’s permitting scheme. 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.

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