On Friday, September 21, 2007, the Houston Property Rights Association welcomed Houston trial attorney David Mestemaker, who is representing Houston area mobile food vendors in a federal lawsuit challenging new state laws which have enabled the City of Houston and Harris County to pass new stringent regulations surrounding the operations of taquerias.
Mestemaker, a personable fellow perhaps in his 50's, opened his talk by saying he first came to Houston in 1980 from Michigan. He got a job in the oil business, working for Tenneco. The company sent him to law school, but the company was sold just as he was completing his school work. Mestemaker mentioned that he has been practicing law for 18-19 years, but that the taco truck lawsuit is the first time he has had an opportunity to claim a United States Constitutional claim. Mestemaker mentioned that he would only have about 1 hour to speak to the group, as he had his (very noble) weekly appointment to read to the blind. He said to the group that when he first received the call that he was dreading the idea of speaking to such a group, thinking that he would be speaking to a bunch of landlords who would be telling him that their clients needed to get their trucks off of their property. He said not to get upset if anyone was offended. We at HPRA instead gave him our usual cold water welcome we give to our guest speakers and I informed him we were equal opportunity offenders, ergo he later on admitted that he had a great time speaking to us.
Mestemaker said that the taco & mobile food truck Constitutional claim was based on the 14th Amendment, specifically its due process and equal protection clauses. Mestemaker said that Constitutional claims are often very complex, but broadly the issue is whether a statute or ordinance is, either on its face or in its application, biased towards certain groups? If so, then such laws are violative of the 14th Amendment.
Mestemaker said that the new state statutes enabling local ordinances to be passed were originally authored in March 2007 by Duane Bohac and Kevin Bailey. As one can see by reading the legislation, the statues apply only to counties with a population of 2.8 million or greater - i.e. Harris County. Mestemaker said that representatives received substantial campaign contributions from the Houston area restaurants and associations. However a quick lookup on the Internet revealed that, though yes Duane Bohac received at least $3,800 worth of such monies, that was less than 2 percent of the $222,000 he raised during the period leading up to the 2007 State legislative session. So take that as you will. Kevin Bailey received a lot more money from labor unions and both Bohac and Bailey received more contributions from home builders than from food vendors.
All the same, the issue is still before us. Mestemaker said that the ordinances state that the mobile food trucks have to have written permission to be on a piece of land or property, that there needs to be a toilet within 500 feet of the business, and that they need to be inspected everyday.
A short time ago, a hearing was held in the court of U.S. District Judge Nancy Atlas. Justice Atlas asked the Harris County representative what they intended to do to enforce the new rules. Mestemaker told HPRA that the Harris County attorney said something to the effect that "this is an unfunded mandate and if they (the State of Texas) will not send us any money to enforce it, then we won't do a damned thing about the matter." Ms. Atlas then asked the City of Houston attorney what it intended to do and the CoH attorney said several things:
1) The CoH will empower the Houston Police Department to inspect and ticket taquerias - something Counsellor Mestemaker wondered whether the rank and file of HPD would really care to be doing when real criminals are roaming the cityscape.
2) The City intends to enforce the rule that a bathroom must be within 500 feet of the taqueria.
3) The building owner who has the bathroom where the taco truck is parked must have a signed notarized statement authorizing anyone can use that bathroom. More on this particular rule in a moment.
4) The mobile taco truck must be inspected everyday.
5) If the truck owner intends to be on a piece of property for 90 minutes, then the owner must have written permission to be on the owner's property. More on this later.
The City lawyer was asked by an AG lawyer in one hearing what would happen if violations would occur? The City attorney said that
1) A fine would be imposed.
2) Their medallion (which acts as a permit) would get yanked.
3) A felony charge would be slapped on owners and operators.
4) Then finally the City would shutdown a truck which continued to violate ordinances.
In Mestemaker's words, the City's attitude was one of "it's just a minor thing", no big deal. There may be a different point of view from the point of the truck operator or owner.
Mestemaker said that there were an estimated 17,000 restaurants in Harris County and only 43 full time food inspectors. In comparison, there are an estimated 1,500 taco trucks or trailers operating in Harris County, ergo that makes the taco trucks about 9 percent of all the food establishments in the Houston area. About 500 of these are licensed and are operating in the City. More are unlicensed, while others are admittedly downright illegal. Meanwhile, there are a total of 15 commissaries in Harris County which the taquerias get their food and utensils from, as well as functioning as places where trucks can get cleaned. 14 of these are in the City, while only 1 is in the County. Also, only one of these commissaries is open 24 hours per day.
As things stand today, the taco trucks are supposed to be inspected once per year, if an inspector shows up (and that can happen at any time), or if there is a report that they are in violation of an ordinance. These requirements are not too terribly far different from those facing fixed location restaurants, but one big difference between taco trucks and fixed location restaurants - and this gets back to items #3 and #5 above - is that the bathroom on the premises of fixed location restaurants must be in compliance with the Americans with Disabilities Act. In other words, the ADA compliant bathroom must be accessible to those with handicaps.
Some HPRA members at this point brought up ideas. One member asked what was the difference between a Taco Bell with a drive through window doing after hours business, but whose restaurant was closed? Not much it seems. This is an issue because many of the taquerias in fact do walk up trade and have no place to sit down. Ergo, there would be no need for customer toilets.
Mestemaker went on to say that prior to the new ordinances, the requirements for the trucks were that they needed to have a wastewater tank which had a capacity of at least 33 gallons. This is because such trucks do not have a grease trap, something that normal restaurants are required to have. These tanks could be serviced at a commissary or via vacuum truck whose purpose is to clean clogged grease traps at fixed location restaurants and to clean tanks for mobile trucks.
Mestemaker went on to describe the demographics of who actually operates these mobile food trucks. A small number are operated by blacks, who mostly offer barbeque type fare on their menus. Some are operated by Asians who offer Chinese food, but about 85 percent of the trucks are operated by Hispanics. Mestemaker said that in January 2006, two elected officials, CM Toni Lawrence and Duane Bohac, made statements to the effect that, "these taquerias are springinig up like daisies and are making us look like a third world country." So, yes there is a contention that there is a racial motivation behind the enactment of these ordinances.
As noted above, Mestemaker said the County passed an ordinance saying a bathroom had to be within 300 feet of the taqueria, while the City requirement was that a bathroom had to be within 500 feet. The trucks can no longer be cleaned by a vacuum truck, but now has to go to a commissary for cleaning. As noted above, there are 1,500 trucks and only 15 commissaries. During ealier court hearings, Mestemaker asked a City witness on the witness stand how long an inspection takes and the reply was an inspection takes 20-45 minutes per vehicle, so you do the math. Imagine a commissary is open 16 hours per day. Can all 1,500 trucks get inspected in an average day? That aside, my notes say that the commissaries pay for the inspections, which I would imagine would imply that the truck owners themselves would ultimately bear the cost for these inspections as I would think that the commissaries would pass on the cost of the inspections onto the truck operators (I did not get this part of the story clearly). That leaves these truck owners having to drive for perhaps 30 minutes to the nearest commissary, then wait in line for their daily inspection, then pass the daily inspection before they can go home for the day.
One HPRA member asked whether these rules are in effect for trucks operating in San Antonio, Richmond, Victoria, or other urban areas in the state? The answer of course is no (from reading the statute), which begs the question of why are these rules in effect for trucks operating only in Harris County and Houston? Are the trucks in Houston any dirtier than those operating elsewhere, or is the incidence of sickness resulting from patronizing these places any worse than in other areas in Texas?
CM Toni Lawrence said to Counsellor Mestemaker that City ordinances have been on the books since 1999 regarding inspections. Mestemaker told the audience that the ordinances that have been on the books have to do with the operating of wastewater tanks, not the requirement of everyday inspections. Mestemaker went on to ask why is the solution of wastewater tanks still not viable and why can't they still ply their business? Mestemaker asked City Council whether there had been any reports of sickness from patronizing the taco trucks in the past 5 years. The answer was no.
Mestemaker told the audience that most property owners have a kind of symbiotic relationship with the taco trailers (not necessarily trucks). Many collect rent from trailer owners and sell gasoline to them. They are happy that they are there, but they are not happy with the new requirement that the mobile food units need written permission from them to operate because of the fact that the ADA approved bathroom requirements are stiffer for a restaurant than for, say, a gas station. Mestemaker did say that some of these facilities are of a semi-permanent nature, complete with water meters and have leases with the property owners.
When Mestemaker was approached by the taqueria owners about taking on the case, he told them that they could not afford him, but he has been proven wrong. These people have come on strong because they know their livelyhoods are at stake. Mestemaker said that there are an average of 3 employees per truck, which means that 4,500 people's jobs are at stake here. Many of these trucks are operated (but not necessarily owned) by single mothers and most of these trucks are not making a great deal of profit from what they do. These trucks do not carry a great deal of food because they regularly replace their food stores from their commissary visits. The freshness of their food stores and the fact that they do not store their food supplies for long helps to account for the fact that patrons almost never get sick from eating the food on offer.
Mestemaker said he has few problems with the requirement that taquerias have written permission from property owners to be on their land. However he did bring up the scenario of whether a new construction site which has the lunch truck roll up would be able to satisfy such a requirement? Also, some of these trucks operate on parcels of land which have not had paid any taxes for many years and, if one were to look at the HCAD website, there may be doubt as to who may be the title holder or owner of the property in question. In other words, the land is probably vacant. How would one secure permission to operate on such premises? One HPRA member then asked, almost in outrage, why should this be a City requirement? If he owned a piece of property, then if he didn't want them there, then he (as the property owner) would evict them. No government intervention would be necessary.
One HPRA member who happens to be a practicing attorney asked about the 14th Amendment claims surrounding this case. Mestemaker said that the precedent was founded in 1886 when the City of San Francisco passed an ordinance prohibiting the operation of laundries in wooden buildings. They had to be operating in brick and mortar ones. Ergo, it was alleged that the ordinance violated the 14th Amendment in its application by denying a same playing field. The United States Supreme Court ruled that if the effect of a law denies equal footing, then its gone. Mestemaker says that these ordinances and statutes, in their application, chill the ability to do commerce and force taqueria owners to spend several hours per day - every day - of their time in complying with them. Furthermore, neither the City nor the County specifically asked for empowerment from the State to enact them.
Mestemaker has talked to many people about the matter, including fixed location restaurant owners. The general consensus about the matter amongst the public seems to be that if people aren't getting sick or if these mobile food trucks are not dumping wastewater down sanitary drains, then leave them alone. The other matter at stake is Premises Liability Law. Mestemaker said that if you are a property owner, but that something happens on your property without your permission, then you are not liable.
One HPRA member said that the politicians in question are really trying to follow the wishes of their voting constituents. In other words, there are plans being made for areas where the taquerias are numerous and that the populace in those areas do not want them operating there. What are the politicians in question supposed to do? Another HPRA member though said that this sounds like one of those matters where we just have to do something about those people.
Finally, there is a hearing on the suit on October 24. December 1 is when the ordinance is supposed to become enforceable. Mestemaker wrapped up his story by telling of something that happened at the end of one hearing. The Houston Chronicle reporter asked if if he knew whether Homeland Security was here? Mestemaker said no, was he on the watch list and would he not be able to fly anymore? This was because some 60 truck operators showed up for the hearing. They were, in Mestemaker's words, the nicest and most well behaved people in the court room, but our government pulled out the stops and rang the fire alarms in reaction.
I will say here that more than 20 years ago I worked for a Domino's franchisee for 2+ years. The company operated (and still operates) an area wide commissary off of 610 North Loop where dough, meat, card board delivery boxes and vegetables are all distributed by truck for standardization purposes. If you every happen to see an 18 wheeler with the Domino's logo on it, then that truck is on a run from the commissary delivering food orders to company stores . Each of our stores were inspected maybe 2-3 times the entire time I worked for him. I had to attend a City mandated restaurant sanitation course.
Having stated all of this, I will say that the entire idea that these trucks must get inspected every single day is absolutely preposterous on its face. Instead of the public paying for the burden of having government employees going out to perform what are perhaps annual inspections of restaurants, we will have effectively turned the tables by having the taqueria truck owners and operators bear the burden of having to report for a daily inspection. This is a classic example of using governmental regulatory powers to shut out your competition, using the usual rationale that we need to protect the public. One might want to read these threads from Blog Houston. One HPRA member suggested that Mestemaker talk to the Institute for Justice which works on economic freedom type cases.
I will wind up this rather lengthy epistle by saying that this case has drawn considerable attention throughout the country. Mestemaker has given interviews in Spanish. KPRC, the Chronicle, and the New York Times have all done stories on the issue. Mestemaker told HPRA that he has not had more fun as an attorney than he has had in his entire career, on the account that he genuinely believes that he is right and that he has gotten himself involved in a rather weighty issue here.
So stay tuned!
Wizard.