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Texas Restaurant Association

Back to the barbecue battle

Once again, Sid Miller makes us pay attention to something we shouldn’t have to.

Sid Miller

Sid Miller

Texas’ barbecue culture is sacred. But some pitmasters are catching heat from a former rodeo cowboy overseeing the state Department of Agriculture.

Commissioner Sid Miller is slapping fines on their small businesses despite a warning from the attorney general that his reasoning may be illegal. The department issued at least 13 citations to barbecue joints for failing to register their meat scales since September, despite a 2017 state law requiring the commissioner to leave such establishments alone. In a case of unlikely bedfellows, Miller’s commission issued nine scale-related fines to yogurt shops, too.

The department has no plans to stop.

The citations are part of a running feud between restaurant owners and Miller, a white-cowboy-hat-wearing commissioner who made it his mission to ensure the state register all scales that weigh food for customers. But the state’s restaurant association is warning the food fight could land the commissioner in court.

[…]

When you order a quarter-pound of brisket, Miller insists the meat-slinger should set it on a state-registered scale where you can read the weight. Restaurants must also pay a yearly $35 fee for each of their scales. But strictly enforcing the law could force some of Texas’ most storied smokehouses to completely change the layout of their kitchens, incurring huge remodeling costs.

It’s “patently absurd,” said Kenneth Besserman, general counsel for the Texas Restaurant Association. Some pitmasters scrambled to rewrite their menus to serve less specific amounts of meat but found that created confusion for customers, he said.

Besserman and the restaurant lobby quickly convinced the Legislature to rewrite the law, nicknaming their effort the “Barbecue Bill.” Lawmakers in 2017 almost unanimously agreed to exempt scales “exclusively used to weigh food sold for immediate consumption,” largely pertaining to barbecue restaurants, yogurt shops and certain salad bars. The governor was sold.

Nevertheless, Miller persisted. Once the bill became law, Miller used his authority to add three additional words: “on the premises.” That meant any establishment selling food to-go — as the vast majority of barbecue restaurants do — had to follow the scale laws and regulations, essentially undoing the new law.

See here and here for the background. AG Paxton has opined that Miller’s interpretation is out of bounds, and the TRA is threatening to sue. I have expressed my reluctant agreement with Miller on the merits of the 2017 law, but it is the law and a public official’s role is to obey and uphold the law, outside of situations where the law is obviously immoral or unjust. This doesn’t meet that standard, in which case Miller should be lobbying for the law to be changed, or to work to un-elect the legislators who passed it. It’s also fair to point out, as Miller’s Democratic opponent Kim Olson does in the story, that the AG ought to have other priorities than this, as there have been almost no complaints made in recent years about inaccurate barbecue scales. Of course, given the sorts of things Miller tends to do when he has a bit of free time, this is at least not horribly embarrassing. Silver linings, I suppose.

Paxton versus Miller on barbecue

Just embrace the fact that this is the world we live in.

Sid Miller

Sid Miller

A nonbinding opinion issued Monday by Attorney General Ken Paxton continues a battle between lawmakers, restaurants and Agriculture Commissioner Sid Miller over regulation of scales used to measure food.

Under state law, roughly 17,725 retailers, including grocery store chains, airlines, coffee houses, laundries and brisket purveyors, are required to use scales to measure what they sell to the public. Those scales are also supposed to be registered with the state so inspectors can ensure that they’re not tipped in the seller’s favor.

A law passed during last year’s legislative session, however, carved out exemptions for scales “exclusively used to weigh food sold for immediate consumption,” meaning places such as yogurt shops and barbecue joints won’t have to get their scales registered.

Miller called the law “horse hockey.”

[…]

Miller’s agency, which was charged with verifying the accuracy of the retailers’ scales, decided that businesses would only be exempt from regulation if they weighed foods to be eaten “on the premises.” But the barbecue bill’s authors argued that in determining how to implement the law, Miller’s agency misinterpreted its intent. So Miller asked Paxton for a written opinion.

Paxton sided with the barbecue joints in his opinion Monday, saying Miller’s agency went too far.

See here for the background. As I said before and as I may never say again, I think Miller had the better argument, but at least we know Ken Paxton remains consistent about siding with the moneyed interests whenever the opportunity presents itself. But who cares about any of that? This calls for a song:

Now if you’ll excuse me, I hear some brisket calling my name.

Food trucks

The city of San Antonio is preparing to overhaul its regulations of food trucks.

In San Antonio, strict mobile food vending laws make it difficult for food trucks to flourish. Acknowledging the need for change, officials are jump-starting a process to get more moveable feasts on the road.

City Manager Sheryl Sculley has ordered a review of existing ordinances and wants staff to develop recommendations for the City Council, a plan Castro embraces.

“San Antonio’s probably been a bit too traditional with respect to food vendors, and other cities have been more creative,” Castro said. “But that will certainly change. The city will review the policy on food vendors. They’ve played a role in a number of cities in enlivening downtown, and they can play that role for San Antonio.”

At the leased Southtown lot, the Newmans’ park would have featured about five trucks hawking the likes of $8 Japanese beef sliders and $5 french fries rendered in duck fat.

But the plan was snagged by a city law that prohibits food trucks parked on commercial property from vending within 300 feet of a restaurant without written, notarized permission from the restaurant. And the owner of any restaurant within that range can change his or her mind at any time.

[…]

Inspired by a fear of ice cream vendors, one law requires mobile food vendors to undergo an FBI background check that can take six weeks to complete. Another prohibits vendors from setting out tables or chairs and playing music.

A fear of ice cream vendors? I know their jingles can drive you a little crazy, but seriously? I’m hard pressed to see the public policy rationale in these regulations. It’s no mystery why San Antonio lags behind here. The case for throwing out a lot of these silly rules is clear – nobody would ever argue that restaurants must be more than 300 feet away from each other, or that their employees must undergo FBI background checks – but any time an industry that has benefited from such anti-competitive regulations sees them come under assault, it tends to push back. It’s not clear yet how that will play out in the River City.

Aware of the city’s shifting stance, officials with the San Antonio Restaurant Association are striking a cautious tone.

“It’s a sensitive issue,” said Yolanda Arellano, executive director of the association. “We don’t want to deny someone from being an entrepreneur. And restaurateurs are the epitome of the American dream. But at the same time you’ve got to be fair. There’s an investment in that mortar, in that brick. And you want it to be safe, too.”

As change stirs, opponents will have to contend with a city looking to the future.

“I hear that there are concerns from existing restaurants,” Sculley said. “But a rising tide lifts all ships.”

And not to put too fine a point on it, consumers will be much better served by a looser market, just as we all would be better served by getting rid of the byzantine regulatory structure around the beer and wine industries. Matt Yglesias has often written that unaccountable local regulations and licensing requirements are the sort of thing that libertarians who often go tilting at federal windmills should spend more time on, and that there’s a lot there for progressives to work with them. I see a lot of merit in this viewpoint.

And how do things look in Houston?

As general counsel of the Texas Restaurant Association, Glen Garey works in downtown Austin. He says the environment has inspired little hostility among food trucks and restaurants.

“There was a great deal of tension when the concept first started to balloon,” Garey said. “I think a lot of that kind of dissipated.”

He added that Houston has seen a different outcome.

An influx of food trucks there led to a health-code crackdown that severely restricts their operations. Trucks with propane can’t go downtown, and no food trucks can park on a street for more than an hour or sell food within 100 feet of any outdoor seating, said Laura Spanjian, the city of Houston’s sustainability director.

She said Houston also is planning to lift restrictions to allow food trucks downtown.

And indeed, a little googling around led me to the August Greater Houston Restaurant Association newsletter, which contains the following:

As you know, the food truck industry is growing rapidly in the Houston area. In addition to the multitude of taco trucks that have long been a part of our community, we are now experiencing “chef-driven” trucks who are rapidly expanding in numbers.

The newer trucks have indicated that current regulations are restraining their ability to conduct business. As a result, the Mayor appointed a Stakeholder committee to discuss their issues and concerns. We have been a part of the task force and all of the many meetings that have been held.

Issues surrounding the mobile food truck business include distance between trucks that are using propane, allowing them to operate in the central business district, allowing trucks to have tables and chairs within 100′ of your restaurant, and more.

We’ll see how that goes.

Banning trans fats

I haven’t really followed the anti-trans fat bill very closely, but if it’s worth a front page headline, it’s worth a mention here.

Lawmakers in coming weeks will consider bills by Houston state Rep. Carol Alvarado and state Sen. Eliot Shapleigh, D-El Paso, that would outlaw restaurant use of certain oils, shortenings and margarines by September 2011.

The oils, which have been treated with hydrogen at high heat to prolong shelf life, were touted as healthful alternatives to butter until doctors found they contributed to cardiovascular and other diseases.

“Texans want to make healthy choices,” Alvarado said Friday. “This has nothing to do with taste. Our restaurants cook with trans fat-free oils, and it doesn’t compromise the flavor at all.”

Glen Garey, general counsel for the 5,000-member Texas Restaurant Association, said his organization “stands arm in arm” with Alvarado on the issue, especially since the bill was altered in committee to allow restaurants more time to comply.

If the bill becomes law, Texas would join California and New York City in banning the restaurant use of oils containing artificial trans fats.

Alvarado’s bill calls for eliminating use of such oils at restaurant chains with 15 or more outlets in Texas by September 2010. The ban would apply to all restaurants by September 2011. Penalties for violations have yet to be determined.

Rep. Alvarado’s bill is HB1523. I’m moderately surprised that there’s no real opposition to this; usually this sort of thing kicks up a big fuss. I guess this is sufficiently mainstream now that a measure like this is seen as inevitable.

One objection I have seen to this comes from EdT on Twitter, in reply to an agreeing Alison Cook, who notes that there’s “MUCH more trans fats in the stuff on the grocery store shelves.” I’d say that’s true, but it’s also a federal matter. Restaurants are something the Lege can regulate, and so here we are.

HB1523 hasn’t had its committee hearing yet, and with a bit more than 8 weeks left in the session it’s hard to say what its prospects are, even with the restauranteurs in its corner. On a related note, Rep. Alvarado has also filed HB1522, which would require chain restaurants to disclose their nutrition information. Given that the best source for this information nowadays is Ken Hoffman’s Drive Thru Gourmet column, I’d say that bill might have the bigger effect.

Another step forward for a statewide smoking ban

The statewide smoking ban proposals picked up the endorsement of the state restaurant association.

On Monday, the Texas Restaurant Association voted to support the measure – one they say would “level the playing field” for establishments across Texas.

“With 28 Texas cities and 24 states now smoke-free, it’s just a win-win for that industry,” said state Rep. Myra Crownover, the Denton Republican carrying the House bill to ban smoking in all the state’s public places.

“What people forget is that for every one person who wants to smoke at a restaurant or bar, there are six or seven people who don’t go to that establishment because they allow it.”

One group unconvinced? Civil libertarians – who say it’s inappropriate for the government to intrude on private property or take away personal freedoms.

They’re joined by the tobacco lobby, which has contributed more than $112,000 to the campaigns of Texas lawmakers in the last two years, according to Dallas Morning News research.

“A restaurant, a bar, is private property, and you the customer have the choice of whether you go in or you don’t,” said Patrick Dixon, chairman of the Texas Libertarian Party. If you’re a nonsmoker, “there are other places that will cater to you.”

All due respect here, but if you’ve got to go to the chair of the Texas Libertarian Party for an anti quote, the pro position is probably in pretty good shape.

The proposed state ban, which is being championed by cyclist and cancer survivor Lance Armstrong, would outlaw smoking in bars, restaurants and all indoor public places across Texas, including offices, convention centers and bus stations. It would also ban smoking in the bleachers of outdoor sporting or music events, and anywhere within 15 feet of a doorway to a public building.

A statewide smoking ban, which failed in the 2007 legislative session, would supersede less-stringent laws in Texas cities. Smoking would still be permitted in specially marked hotel rooms, private rooms at nursing homes and outdoor patios connected to restaurants or bars.

Depending on circumstances, the patio allowance is either a deal-maker or a deal-breaker for bar and restaurant owners. Some establishments say it’s the only way they’ll be able to retain their smoking customers.

I’ve noted Armstrong’s involvement before. I don’t really have an opinion on the patio allowance provision. It’s fine by me if there is one, but it won’t break my heart if there isn’t.

Gov. Rick Perry said that while he fully understands the health concerns of cigarette smoke, he likes the idea of local control and wants to find a way to walk the line that protects individual rights.

So there’s still the chance of a veto, or a back-alley bill-killing, if the Governor gets a wild hair about it. But overall, the odds of this happening look good.