Photo by Scott Bovee

27/10/2020

What happened:
A resident of South Padre Island, Scott Bovee, cannot obtain a permit to start his food truck business on the Island due to ongoing civil litigation against the city.

Bovee attempted to work with the city for a solution but was unsuccessful and explained his frustrations with the city. "I addressed the City Manager and City Attorney, and they have yet to return any of my phone calls.” Bovee expressed his concerns to the Environmental Health Director, Victor Baldovinos, who said he could not respond because of the city's involvement in the lawsuit. According to Bovee, Baldovinos told him that the city's attorneys instructed him not to speak on the case.

"I get 20 phone calls a day. I get emails, everything. People want to know when I'm going to reopen. People call council members on my behalf. For example, said Bovee, "Joe Ricco won't even talk to me about it. He'll talk to other people about my stuff, but he won't talk to me. I want our customers to know why we're not open."

Bovee concluded that if he could not, as a resident, be allowed to open his business, he would have to leave South Padre Island. "We're in a waiting period right now. We might have to leave South Padre if I have to take my business somewhere else."

Why it matters:
On the 5th of August 2015, there was a motion to create a "local group of restaurateurs get together and come up with ideas on modifying the proposed ordinance and bring [it] back to City Council for discussion and action."

In charge of making laws for the Island concerning food trucks was a committee (Food Truck Planning Committee) of local restaurant owners. They continually violated the Open Meetings Act (OMA) by conducting their meetings at local restaurants according to the statement of facts in a motion for summary judgment. "The City did not create or post any notices to inform the public about the Committee's meetings. Indeed, no evidence shows that the city made any attempt to have the Committee comply with the Texas Open Meetings Act. The Committee held its meetings, not at City Hall, but local restaurants."

The City of South Padre Island is currently in civil litigation due to its cap on food trucks (12) and only issuing those permits to applicants who can convince a local restaurant owner to support the permit application.

"The City of South Padre Island city council, which is full of local business owners - outsourced and just handed the keys to the food truck ordinance to a group of restaurant owners years ago. The effect of it is to pick winners and losers in the marketplace," said leading attorney Arif Panju to KRGV News. Panju also told KRGV that the city displayed economic protectionism by choosing their competition. "The city's been trying to justify these restrictions even though they're transparently anti-competitive and exist only to protect local restaurant owners from food truck competition."

On a phone interview with Panju, he discussed how a lack of transparency from the city was very troubling, and he was unable to depose the city who chose one witness to represent the city as a whole (Mr. Baldovinos). "In the fall of 2019, the city made it very difficult to get the deposition scheduled. We finally got it down and showed up for a deposition, and the city did not show up. They can't do that. They are under subpoena."

What now:
Panju confronted City Council in that December meeting for communicating to him that Baldovinos was on vacation, and their 3rd party lawyers were unavailable while they were both working and present at this meeting.

"They were both there. There were two meetings, and they wanted to take action immediately. This (the emergency special meeting) was obviously in response to the case. One food truck owner tried to get his permit renewed during that time, and they told him they could not renew it and wait to see what the council does. This means permits could be gone because if you look at the agenda. I think they were trying to get rid of all food trucks to make the case go away. Which would not make the case go away," said Panju.

Panju continued, "I sent an interrogatory, and I asked them to explain what the emergency was, along with the other (questions) about the case. They responded to the interrogatories and skipped that one. 'Til this day, they have never identified what the emergency was that prompted that meeting. It's because there was no emergency. This was an attempt to retaliate in response to a civil rights lawsuit, which is extremely troubling and not okay under any circumstance. If the city wants to explain what the emergency was, I'd love to hear it. I'm still waiting for it."

Island Matters is following this case.