Cortes v. City of Houston

Full title: PEDRO CORTES, et al., Plaintiffs, v. THE CITY OF HOUSTON and HARRIS…

Court: United States District Court, S.D. Texas, Houston Division

Date published: Dec 13, 2007

CIVIL ACTION NO. H-07-2744 (S.D. Tex. Dec. 13, 2007)

Opinion

CIVIL ACTION NO. H-07-2744.

December 13, 2007

MEMORANDUM AND ORDER

NANCY ATLAS, District Judge

Pending before the Court is Plaintiffs' Request for a Preliminary Injunction [Doc. # 39] barring enforcement by Defendants of certain state laws and city ordinances. The City of Houston has responded [Doc. # 42]. The Court held a brief telephone conference on this matter on November 19, 2007, followed by an evidentiary hearing on November 20, 2007.¹ Upon review of the written submissions to the Court, testimony and oral argument presented at the hearing, all pertinent matters of record, and applicable law, the Court concludes that Plaintiffs' request should be denied.

1 At the November 19 telephone conference, attorneys for the City of Houston, Harris County, the State of Texas, and Plaintiffs participated. Plaintiffs previously dismissed the State from this case. See Order of Nov. 2, 2007 [Doc. # 37]. However, Plaintiffs' Request for a Preliminary Injunction seeks injunctive relief against the State. During the conference, Plaintiffs explained that their inclusion of the State in this matter was in error. Plaintiffs also agreed that the County, which stated that it does not intend to enforce the challenged legislation at this time, would not be subject to Plaintiffs' request for an injunction. Hence, neither the State nor the County were obligated to respond to Plaintiffs' motion.

I. BACKGROUND

Earlier this year, the Texas state legislature enacted new provisions aimed at regulating the operation of "Mobile Food Units" ("MFUs"), defined as "a vehicle-mounted food establishment that is readily moveable." 25 TAC § 229.162(60); see also TEX. HEALTH SAFETY CODE ANN. § 437.001(4). The statute relevant to the pending motion is Texas Health and Safety Code § 437.0074, which states, in pertinent part:

(a) A county with a population of at least 2.8 million, or a municipality or public health district in the county, shall require a mobile food unit to:

(1) return to the food service establishment or commissary from which the unit operates within the 24-hour period preceding operation of the mobile food unit to have cleaning and other services performed on the unit; and

(2) obtain, on completion of an inspection following servicing, written documentation that the mobile food unit has been serviced daily as required by Subdivision (1).²

2 The Legislature also enacted Texas Health and Safety Code § 437.021, which requires that MFUs operating "in a county with a population of more than 3.3 million shall acquire written authorization from the owner of the property on which [the MFU] is operating." Although Plaintiffs' written Request for a Preliminary Injunction seeks to enjoin enforcement of this provision as well, Plaintiffs' counsel withdrew this request during the November 19 telephone conference.

Pursuant to these provisions, the City of Houston amended its local ordinances governing the operation of MFUs, HOUSTON, TEX., CODE § 20-22 — which has been in effect since 2000 — on September 19, 2007, with such amendments to go into effect on November 19, 2007.

Relevant to Plaintiffs' Request for a Preliminary Injunction are amendments to subsections (e) and (f),³ which state, in pertinent part:

3 The other amendments to § 20-22 require, inter alia, that certain MFUs obtain permission to operate on private property, HOUSTON, TEX., CODE § 20-22(c)(4), operate within five hundred feet of a flushable toilet, HOUSTON, TEX., CODE § 20-22(c)(5), and demonstrate "mobility" at "any reasonable time if requested by any peace officer or health officer," HOUSTON, TEX., CODE § 20-22(c)(7). Plaintiffs' Request for a Preliminary Injunction includes a request to enjoin these provisions. However, during the November 19 telephone conference, Plaintiffs' counsel clarified that Plaintiffs were only seeking an injunction barring enforcement of § 20-22(e).

(e) Servicing of mobile food units by commissaries; servicing records.

(1) Servicing by commissaries. Mobile food units, other than restricted service mobile food units, shall operate from a commissary approved by the health officer and shall report to such location for supplies, cleaning, and servicing operations as follows:

* * * *

c. All other mobile food units shall return to the commissary for the performance of all servicing operations within the 24-hour period preceding operations.

* * * *

(4) Servicing records to be kept by commissaries. The commissary from which a mobile food unit operates shall issue and maintain service records for each mobile food unit in a manner and form prescribed by the health officer. . . . .

(f) Commissaries.

(1) Permitting of commissaries as food establishments. A commissary servicing any mobile food unit, other than a restricted service mobile food unit[,] shall be an approved and permitted food establishment at which the mobile food unit is supplied with fresh water, emptied of waste water into a proper waste disposal system, and cleaned, including washing, rinsing, and sanitizing of those food-contact surfaces or items not capable of being immersed in the mobile food unit utensil-washing sink.

* * * *

(4) Commissary serving area and operations.

* * * *

b. Servicing operations.

[1] Potable water-servicing equipment shall be stored and handled in a way that protects the water and equipment from contamination.

[2] The mobile food unit liquid waste retention tank, where used, shall be thoroughly flushed and drained during servicing operation. . . . .

[3] Vehicle cleaning and in-place cleaning of nonfood-contact surfaces of equipment not requiring sanitization shall be done with potable water and shall be done in a manner that will not contaminate the vehicle's food storage or food preparation areas or equipment. If hoses are used in the cleaning process, they shall be food-grade and kept off the floor or pavement, on racks. . . .

[4] The use of liquid waste transport vehicles, otherwise known as vacuum trucks, for the removal and disposal of liquid waste resulting from mobile food unit operations is prohibited.

* * * *

[5] Servicing operations may be performed by the commissary operator or by the mobile food unit operator. It shall be the commissary operator's responsibility to observe or perform servicing on each mobile food unit and properly complete a servicing record as prescribed by the health officer. It is the responsibility of the mobile food unit operator to confirm that the requirements of this section are fulfilled prior to resuming operations.

HOUSTON, TEX., CODE § 20-22(e), (f).

The amendments to subsections (e) and (f) make few substantive changes to the provisions previously in place. Required "servicing operations" remain identical. However, the amendments clarify that servicing is to occur within the "24-hour period preceding operations" rather than "daily" as was required under the old ordinance. In addition, the amendments place a duty on commissary operators to ensure that servicing operations — whether they be conducted by a commissary employee or by the MFU operator — are completed. See HOUSTON, TEX., CODE § 20-22 (as enacted prior to Sept. 19, 2007).⁴

4 Both the old and new versions of this ordinance were admitted into evidence at the November 20, 2007 hearing and are attached hereto because they are difficult to obtain in the public record.

Plaintiffs, all of whom are Hispanic, operate MFUs in the City of Houston and/or Harris County. Plaintiffs assert that the state statutes and city ordinances noted above are "unduly vague" and "violate the Equal Protection Clause [of the 14th Amendment]."⁵ Upon discovering that the City planned to begin enforcement of the amended ordinances on November 19, 2007,⁶ Plaintiffs filed the pending request for injunctive relief. During the November 19, 2007 telephone conference, Plaintiffs' counsel stated that Plaintiffs were seeking to enjoin enforcement of subsection 20-22(e) of the Houston City Code, which Plaintiffs believed would require MFU operators to present themselves for daily inspections by the City. The November 20, 2007 hearing focused solely on this provision.

5 See Plaintiffs' Second Amended Complaint [Doc. # 38], ¶¶ 1, 42.

6 See Plaintiffs' Request for a Temporary Injunction [Doc. # 39], Ex. A: "Letter to Plaintiffs' Counsel from the City Attorney."

II. STANDARDS OF LAW

In determining whether to issue a preliminary injunction, the Court considers four factors: (1) whether the plaintiff has a substantial likelihood of succeeding on the merits; (2) whether there is a substantial threat of irreparable injury to the plaintiff in the absence of an injunction; (3) whether the threatened injury to the plaintiff if the injunction is denied outweighs the threatened harm to the defendant if the injunction is granted; and (4) whether granting the injunction will disserve the public interest. Guy Carpenter Co., Inc. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003); Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 917 — 18 (5th Cir. 2000); House the Homeless v. Widnall, 94 F.3d 176, 180 (5th Cir. 1996); Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

The plaintiff bears the burden to establish the four factors. "Any injunctive relief is considered `an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.'" Harris County v. Carmax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)); see also Guy Carpenter, 334 F.3d at 464; Evergreen, 235 F.3d at 917. "The primary justification for applying this remedy is to preserve the court's ability to render a meaningful decision on the merits . . . `[by] prevent[ing] the judicial process from being rendered futile by defendant's action or refusal to act.'" Canal Auth., 489 F.2d at 573 (quoting WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2947). "Thus, only those injuries that cannot be redressed by the application of a judicial remedy after a hearing on the merits can properly justify a preliminary injunction." Id.

The Fifth Circuit has endorsed the use of a "sliding scale . . . which takes into account the intensity of each [factor] in a given calculus." State of Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 180 (5th Cir. 1975); see also Fla. Med. Ass'n v U.S. Dep't of Health Welfare, 601 F.2d 199, 203 n. 2 (5th Cir. 1979). However, "[n]o matter how severe and irreparable an injury one seeking a preliminary injunction may suffer in its absence, the injunction should not issue if there is no chance that the movant will eventually prevail on the merits." Seatrain Int'l, 518 F.2d at 180. "Nor is there need to weigh the relative hardships which a preliminary injunction or the lack of one might cause the parties unless the movant can show some likelihood of ultimate success." Id. "Obviously, it is inequitable to temporarily enjoin a party from undertaking activity which he has a clear right to pursue." Id.

III. ANALYSIS

During the November 19, 2007 telephone conference, Plaintiffs' counsel stated, inter alia, that he intended to demonstrate that a preliminary injunction barring enforcement by the City of § 20-22(e), as amended, was necessary to prevent irreparable harm to his clients. Plaintiffs' counsel explained his intent to establish that the provision is violative of the equal protection clause of 14th Amendment because it impermissibly imposes requirements on the owners and operators of MFUs that are not imposed on the owners of free-standing restaurants. Counsel further stated his intent to prove that the provision was unconstitutionally vague. During the November 20, 2007 hearing, Plaintiffs offered testimony from two witnesses: Juan Ramirez Hernandez ("Ramirez"), an MFU operator and Plaintiff in this action, and Estella Jimenez, a community activist and president of a local trade association for MFU operators.

Mr. Ramirez testified as to the various inspections that he was subject to prior to the September 2007 amendments to the City's ordinances governing MFU operations. Mr. Ramirez described annual "full" inspections that require him to present his MFU to a City inspector, who checks for, inter alia, gas leaks, electrical problems, and sanitation issues. He stated that MFU operators are also required to demonstrate proof of insurance. According to Mr. Ramirez, a satisfactory inspection is required in order for an MFU operator to receive a business permit. Mr. Ramirez also described "spot" inspections, which occur every two to three months at each MFU's ordinary place of business.⁷ During these three- to four-hour inspections, a City inspector checks the cleanliness of the MFU and ensures that the unit is not infested with insects or rodents.⁸

7 Although MFUs are mobile, they regularly operate at the same site(s) and must provide a route list and itinerary to the Houston Department of Health and Human Services. See HOUSTON, TEX., CODE § 20-22(c)(3).

8 It was not clear from the testimony whether the MFU is able to sell food during these on-site inspections.

Mr. Ramirez also described his daily trips to a local "commissary" where he disposes of waste water, trash, and grease, and fills his unit's water tanks with fresh, potable water. Upon completion of these tasks, Mr. Ramirez receives a receipt from a commissary employee confirming that the unit was serviced. Mr. Ramirez testified that he has been in business since 2001, during which time he has faithfully visited the commissary daily. He stated that the $11 charge to service his unit is somewhat burdensome and that his trips to the commissary are time-consuming. However, he offered no persuasive evidence that these trips seriously hurt his business. Mr. Ramirez further acknowledged the importance of maintaining the cleanliness of his MFU and preventing improper disposal of waste and stated his belief that the laws in place before the September 2007 amendments were sufficient to protect public health. Mr. Ramirez also stated that all of the MFU operators he encounters at the commissary he frequents are Hispanic.

Mr. Ramirez testified that, under the amended ordinance, he expects to be subject to rigorous daily inspections, akin to a "spot" inspection. Mr. Ramirez further testified to his belief that failure to comply under these "new" inspections would subject him to very large fines that could force him out of business. However, Mr. Ramirez admitted that he has only read some of the ordinances regulating MFUs and has received information concerning the amended provisions primarily from the president of a local organization of MFU operators, Estella Jimenez.

Ms. Jimenez, a former MFU operator, testified that she is working to organize local MFU operators to lobby for more favorable statutory requirements governing MFU operations. She leads a group known as the National Association of Mobile Taquerias, whose members are all Hispanic. Ms. Jimenez stated that she is concerned about the City's treatment of MFUs in comparison to free-standing restaurants. She further testified to her belief that the amended City ordinances will require MFUs to present themselves to commissaries for daily inspections. According to Ms. Jimenez, these would be so time-consuming as to force MFUs out of business. However, Ms. Jimenez admitted that she has not read the ordinances governing MFUs and has obtained much of her information about the supposed effect of the amendments from Plaintiffs' attorney.

The City then offered testimony from Conrad Janus, the acting head of Consumer Health Services for the Department of Health, who oversees the Specialized Inspection Group, which regulates MFUs and restaurants. Mr. Janus explained that under the old version of § 20-22(e), MFU operators were required to visit a commissary "daily." Because of this, MFU operators could avoid going to the commissary unless or until a City inspector requested verification of a visit. By telling the inspector that they planned to go to the commissary at the end of the day, MFU operators were technically in compliance with the letter — if not the spirit — of the law. By amending the ordinance to require a commissary visit "in the 24 hours preceding" operation, Mr. Janus explained that MFU operators should now be able to provide proof of compliance anytime they are operating their business. According to Mr. Janus, this ordinance is intended to ensure that MFUs are clean and that waste is properly disposed of.⁹

9 See Transcript of the November 20, 2007 Preliminary Injunction Hearing ("Transcript") [Doc. # 44], at 51, 93-96.

Mr. Janus testified that the amendments do not require any kind of daily City "inspection" of MFUs. Instead, the amendments place a duty on commissary operators to ensure that cleaning operations are completed before MFU operators are given a receipt acknowledging their visit.¹⁰ Mr. Janus noted that the City was provided funding for two additional health inspectors, but explained that two positions had been cut in a previous year's budget. Thus, these inspectors would be hired, not to conduct new daily inspections of MFUs, as Plaintiffs contend, but merely to improve the Health Department's inspection capabilities overall.¹¹ A. Substantial Likelihood of Success on the Merits

10 Id. at 56-59.

11 Id. at 91-93.

1. 14th Amendment — Equal Protection

Under the Equal Protection Clause of the 14th Amendment, different standards of review are applied depending upon the right or classification involved. Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993).

Whether a claim made under the equal protection clause . . . will be successful depends critically on the standard of review that is applied to the state action complained of by the plaintiff. Classifications created by state action which disadvantage a "suspect class" or impinge upon the exercise of a "fundamental right" are subject to strict scrutiny, and will be upheld only when they are precisely tailored to serve a compelling state interest. Classifications that disadvantage certain other groups, such as women, are subject to an intermediate level of scrutiny, and will be upheld only when they are shown to further a substantial interest of the state. Outside these categories, equal protection claims are analyzed under the rationality test. Under the rationality test, the state action need only bear a rational relationship to a legitimate state interest in order to be sustained.

Clark v. Prichard, 812 F.2d 991, 995 (5th Cir. 1987) (internal citations omitted).

Plaintiffs' Second Amended Complaint [Doc. # 38] and testimony elicited during the November 20 hearing make clear Plaintiffs' contention that § 20-22(e), as amended, impermissibly classifies on the basis of ethnicity.¹² However, Plaintiffs have offered insufficient evidence to demonstrate a substantial likelihood of succeeding on this theory.

12 See Plaintiffs' Second Amended Complaint [Doc. # 38], ¶¶ 14 ("The City of Houston [has] enacted laws that directly affect the commerce and likelihood of the principally Hispanic owners and workers of and in Mobile Food Units. . . ."); 15 ("[The] Houston City Council [has] enacted . . . laws that restrict commerce and discriminate against the Hispanics that earn a living in MFUs."), 22 ("These statutes represent the intent of the Texas Legislature to discriminate against the MFU owners and workers; almost all of whom are of Hispanic descent.").

"In many, if not most, equal protection cases, the classification to which the plaintiff objects is explicitly set out in the legislation under which the state acts. By using standards, qualifications, or criteria to control the scope and applicability of the legislation, the legislation itself classifies." Mahone v. Addicks Utility Dist., 836 F.2d 921, 932 (5th Cir. 1988). The ordinance at issue does not, on its face, make any classifications based upon the racial or ethnic background of MFU operators. Plaintiffs, recognizing this, rely on the Supreme Court's decision in Yick Wo v. Hopkins, 118 U.S. 356 (1886), to argue that because — according to Plaintiffs — MFU operators are predominantly Hispanic, the City ordinance unconstitutionally imposes burdens on Hispanics that are not placed on members of other ethnic groups.¹³ Plaintiffs' reliance on Yick Wo is misplaced.

13 See id. ¶¶ 22-25.

It is true that "equal protection of the law requires not only that laws be equal on their face, but also that they be executed so as not to deny equality." Mahone, 836 F.2d at 932 (citing Yick Wo, 118 U.S. 356). In Yick Wo, a facially non-discriminatory city ordinance was found to violate the equal protection clause when, in application, it became clear that the statute was enacted for a discriminatory purpose. Yick Wo, 118 U.S. at 374. The statute at issue prohibited laundries from operating in San Francisco unless the operator received permission from the Board of Supervisors or operated in a building constructed of brick or stone. Id. at 368. The Court found that the Board permitted laundries to be operated in wooden buildings when the business owner was Caucasian, but denied similar approval to all Chinese operators. Id. at 373.

In this case, Plaintiffs' have offered no evidence that the City has enforced in the past, or intends to enforce in the future, § 20-22(e) differently based on the race or ethnicity of an MFU operator. In addition, even if it is true, as Plaintiffs contend, that "most MFUs are operated by Hispanics,"¹⁴ it does not follow that the statute is necessarily unconstitutional. Ever since the Supreme Court decided the seminal case of Washington v. Davis, 426 U.S. 229 (1976), it has been axiomatic that legislation does not offend the Constitution merely because it may, or does, have a disparate impact on members of a certain racial or ethnic group. Instead, it must be shown that the legislation was enacted for a "racially discriminatory purpose." Id. at 240. Only "[o]nce racial discrimination is shown to have been a `substantial' or `motivating' factor' [behind enactment of a statute, does] the burden shift to those supporting the government action to show that the same course would have been pursued absent the discrimination." Walker v. City of Mesquite, 402 F.3d 532, 535 (2005) (quoting Hunter v. Underwood, 471 U.S. 222, 228 (1985)).

14 Plaintiffs, in their Second Amended Complaint [Doc. # 38], request that the Court take judicial notice of "the fact that most MFUs are operated by Hispanics by driving around the city." This an inappropriate use of judicial notice. "Rule 201 of the Federal Rules of Evidence provides that a court may take judicial notice of an "adjudicative fact" if the fact is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998). The Court seriously questions Plaintiffs' position that an individual can be deemed to be "Hispanic" based solely on his or her appearance. See U.S. Census Bureau, Population Div., Special Population Staff, Racial Ethnic Classifications Used in Census 2000 and Beyond (Apr. 12, 2000), http://www.census.gov/population/www/socdemo/race/racefactcb.html. ("People of Hispanic origin may be of any race . . . including White, . . . African American, American Indian . . ., Asian, [or] . . . Pacific Islander."); see also Salas v. Wis. Dep't of Corr., No. 05-C-399-C, 2006 U.S. Dist. LEXIS 21140, *19 (W.D. Wis. Apr. 17, 2006) ("[I]individuals of Hispanic origin may have skin tones that range from dark to fair. . . ."). Thus, the Court declines to indulge this request.

In this case, Plaintiffs' counsel asserts that state legislators amended § 20-22(e) for a racially discriminatory reason and are motivated by a "racist agenda."¹⁵ Plaintiffs in fact produced no supporting evidence for this inflammatory proposition. Plaintiffs thus have failed to demonstrate that this ordinance was intended to, or in fact does, classify regulated and unregulated parties on the basis of race or ethnicity. Therefore, "[s]ince this case does not concern a suspect or quasi-suspect classification such as race or sex, to which heightened scrutiny is given, the equal protection clause requires only a minimum degree of rationality." Reid v. Rolling Fork Public Utility Dist., 854 F.2d 751, 754 (5th Cir. 1988) (citing City of Cleburne v. Cleburne Living Center, Inc., 917 U.S. 432, 439 — 42 (1985)); see also Mahone, 836 F.2d at 934 n. 12.

15 Transcript [Doc. # 44], at 108.

"Applying the legislative model, an equal protection violation does not arise if there is any basis for a classification or official action that bears a debatably rational relationship to a conceivably legitimate governmental end." Reid, 854 F.2d at 754 (citing Shelton v. Coll. Station, 780 F.2d 475, 482 (5th Cir. 1986); Stern v. Tarrant County Hosp. Dist., 778 F.2d 1052, 1056 (5th Cir. 1985)). In fact, "[a]s long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decisionmakers or that some other nonsuspect irrational factors may have been considered." Id. (citing Mahone, 836 F.2d at 934; Shelton, 780 F.2d at 481 — 82) (emphasis in original); see also Stern, 778 F.2d at 1056 ("In equal protection terms, if the legislative purpose be legitimate, a challenge may not prevail so long as the question of rational relationship [to legislative purpose] is at least debatable."). "The general rule is that legislation is presumed to be valid. . . ." City of Cleburne, 473 U.S. at 442. "[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant . . . to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." Id.

To the extent Plaintiffs are challenging the City ordinance on the ground that it impermissibly distinguishes between MFUs and free-standing restaurants, Plaintiffs have clearly failed to show that such a challenge will succeed. The power of the state to enact health and safety legislation is expansive, see Romer v. Evans, 517 U.S 620, 632 (1996) (gathering cases), and the Court's inquiry is confined to whether the City's decision to regulate MFUs differently from free-standing restaurants conceivably could be related to a legitimate government purpose. See Women's Med. Ctr. v. Bell, 248 F.3d 411, 419 (5th Cir. 2001). Based on the evidence presented thus far in this case, the Court is satisfied that the City Council could conclude that MFUs, which have neither any physical connection to a plumbing system, nor obvious grease and waste disposal facilities, pose a unique threat to public health and that § 20-22(e) is rationally designed to minimize that risk.

Thus, Plaintiffs have failed to demonstrate a substantial likelihood of success in proving that § 20-22(e), as amended, violates the equal protection clause of the 14th Amendment.¹⁶

16 To the extent Plaintiffs complain that this ordinance is based upon state law that impermissibly applies only to MFUs operating in "[a] county with a population of at least 2.8 million," TEX. HEALTH SAFETY CODE ANN. § 437.0074, the Court notes that dozens of state laws target cities and counties in this manner, including at least one that also applies to free-standing restaurants. See TEX. HEALTH SAFETY CODE ANN. § 437.0074(a) ("A county with a population of at least 2.8 million may require a trained food manager to be on duty during the operating hours of a food establishment."). "It is well-settled that `as long as a classification is rationally related to a legitimate state objective, a legislature is allowed to attack a perceived problem piecemeal.'" Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 389 (5th Cir. 2001) (quoting Jackson Court Condominiums, Inc. v. New Orleans, 874 F.2d 1070, 1079 (5th Cir. 1989); see also Katzenbach v. Morgan, 384 U.S. 641, 657 (1966). Thus, the Court finds that any challenge to the constitutionality of § 20-22(e) premised on this argument is also unlikely to succeed.

2. Void-for-Vagueness

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (collecting authority). "A statute is unconstitutionally vague if it does not give `a person of ordinary intelligence a reasonable opportunity to know what is prohibited.'" Groome Resources, Ltd. v. Parish of Jefferson, 234 F.3d 192, 217 (5th Cir. 2000) (quoting United States v. Bird, 124 F.3d 667, 683 (5th Cir. 1997)).

"The void-for-vagueness doctrine has been primarily employed to strike down criminal laws." Id. (citing Okpalobi v. Foster, 190 F./3d 337, 358 n. 10 (5th Cir. 1999)). "In the civil context, `the statute must be so vague and indefinite as really to be no rule at all.'" Id. (quoting Boutiller v. INS, 387 U.S. 118, 123 (1967)). Moreover, "[e]ven if the outermost boundaries [of a statute] may be imprecise, any such uncertainty has little relevance [where a litigant's] conduct falls squarely within the `hard core' of the statute's proscriptions." J B Entm't v. City of Jackson, 152 F.3d 362, 368 (5th Cir. 1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973)); see also Fernandes v. Limmer, 663 F.2d 619, 636 (5th Cir. 1981) (quoting ISKCON v. Eaves, 601 F.2d 809, 830 (5th Cir. 1979)) ("`We can never expect mathematical certainty from our language.' The minimal ambiguity presented in [the challenged statutes] is well within constitutional limits.").

In determining whether a statute is unconstitutionally vague, courts look, inter alia, to whether the statute "provide[s] definite standards for those who apply them." Beckerman v. Tupelo, 664 F.2d 502, 511 (5th Cir. 1981). Such standards may be found on the face of a statute or by reference to other authority that has defined otherwise ambiguous terms. See, e.g., J B Entm't, 152 F.3d at 368 (rejecting a void-for-vagueness challenge by noting that the language at issue — "serious literary, artistic, scientific, or political value" — has been "subject of a plethora of opinions handed down by state and federal courts throughout this nation in the quarter century since" they were introduced by the Supreme Court in its test for "obscenity"); see also Basiardanes v. City of Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982) (Where an ordinance is not vague as applied to a litigant, the litigant may proceed on its facial vagueness challenge only if the ordinance's effect on — in this, as in most vagueness cases — first amendment rights "is real and substantial and the language of the ordinance is not readily subject to a narrowing construction by state courts."). Moreover, "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process." Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982). Courts have also "expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Id. (collecting authority). "And the Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Id.

In this case, Plaintiffs did not offer evidence that § 20-22(e) is unconstitutionally vague. The City's testimony and both the old and amended versions of § 20-22(e) establish clearly that Plaintiffs have no substantial likelihood of success on this theory. The only meaningful change to the ordinance is the requirement that MFU operators visit a commissary in the "24 hours preceding" operation, rather than "daily," as was previously required. There is nothing vague about this requirement. Plaintiffs have been subject to the remaining requirements of § 20-22(e) since 2000 and no evidence was presented to suggest that Plaintiffs have been unable to ascertain the requirements to which they have been subject for the last seven years.

Thus, Plaintiffs have failed to demonstrate a substantial likelihood of success on either of their equal protection or void-for-vagueness challenges to § 20-22(e).

B. Substantial Threat of Irreparable Injury

"[T]hat [a plaintiff] is unable, in an abbreviated proceeding, to prove with certainty eventual success does not foreclose the possibility that temporary restraint may be appropriate" where there is an adequate showing of threatened injury. Seatrain Int'l, 518 F.2d at 180. Plaintiffs, however, have failed to demonstrate that an injunction is necessary to prevent them from suffering irreparable harm.

Plaintiff Juan Ramirez's conclusory testimony that he could be put out of business if § 20-22(e) is enforced was premised on a patent misunderstanding that the amended ordinance will require new daily "full inspections" of MFUs. MFU operators have been subject to the requirements of § 20-22(e) since 2000. The Court finds that the 2007 amendment to the ordinance will not cause any injury to those operators previously in compliance with the law. Indeed, to the extent that Plaintiffs' argument is that the ordinance as amended poses a threat of harm because it no longer allows for easy evasion of its "commissary visit" requirement, the Court is unsympathetic.¹⁷ On the other hand, if Plaintiffs' argument is premised on a misunderstanding of the law, the City's explanation of the effect of the amendment should allay many of Plaintiffs' concerns. Finally, Plaintiffs' contention that the "servicing process" required under the amended ordinance "has or will soon . . . devolve into an all-out inspection for the purpose of putting [MFU operators] out of business"¹⁸ finds no support in the record. This assertion is pure speculation and accordingly, is an inappropriate ground upon which to grant a preliminary injunction.

17 See Plaintiffs' Second Amended Complaint [Doc. # 38], ¶ 40 ("Additionally, some of the MFU's [sic] travel to outlying areas of the county and do not return to the commissary on a daily basis. So for them to have to return to the commissary on a daily basis works greater hardship upon these individuals.").

18 Transcript [Doc. # 44], at 107.

Thus, the Court is unpersuaded that Plaintiffs face irreparable injury should an injunction be denied.

C. Balancing of Hardships

The parties offered little evidence on the third factor of the preliminary injunction analysis: whether "the threatened injury to [Plaintiffs] outweighs the potential injury posed by an injunction to [Defendants]." Guy Carpenter, 334 F.3d at 464. Based on the foregoing analysis and the entire record, the Court finds that the threat of harm to Plaintiffs from enforcement of § 20-22(e), as amended, is de minimis and that Defendants, as representatives of the electorate, have a strong and valid interest in enforcing this health and safety law. The balance of hardships does not tip in Plaintiffs' favor. D. Public Interest

Finally, the Court finds that, given the paucity of evidence counseling in favor of an injunction, granting the injunction would disserve the longstanding and clear public interest in ensuring that eating establishments are sanitary and that waste is properly disposed of. See, e.g., Ex parte Baker, 127 Tex. Crim. 589, 595 (1934) ("A city or town may under its police power make and enforce within its limits any traffic, sanitary, or health regulations which are not in contravention of the organic law of the land. . . ."); Tomassi v. San Antonio, 268 S.W. 273, 274 (Tex.App.-San Antonio 1924, writ ref'd) ("In every case brought to the notice of this court, in which regulation of markets . . . was involved, the right of the city to pass and enforce ordinances reasonably calculated to protect the citizen in the purchase of sanitary food has been upheld. . . ."). Thus, Plaintiffs have not satisfied this factor of the preliminary injunction analysis.

IV. CONCLUSION

For all the foregoing reasons, Plaintiffs have failed to demonstrate entitlement to the extraordinary relief of a preliminary injunction.

The testimony and oral argument presented by Plaintiffs and counsel at the November 20 hearing suggest that Plaintiffs actually seek legislation permitting or requiring the City's use of mobile "vacuum trucks" to service MFUs.¹⁹ Apparently, these trucks can travel to the site where an MFU operates and can clean and dispose of an MFU's waste. Plaintiffs' witnesses testified that use of such trucks would limit the time and effort it takes for MFU operators to make daily trips to the commissary and, by implication, would be favorable to their business interests. The Court is sympathetic to the inconvenience that the required commissary visits impose. There can be no doubt that operating a business is challenging — especially a food service business subject to serious state regulation. However, absent proof that legislation runs afoul of the Constitution, the Court has no authority to enjoin enforcement of laws, even if the provisions are perceived to be ineffective or misguided. See, e.g., Women's Med. Ctr., 248 F.3d at 419. The Court's inquiry is limited to whether the classification at issue rationally serves the general purpose identified by lawmakers. Id. "Whether the court agrees with the accuracy of the line of demarcation drawn by the Legislature to distinguish the classification is of no great moment." Id. Plaintiffs must, and should, resort to the political process to address their concerns.

19 See id., at 27-28, 32-33, 108-109.

It is therefore

ORDERED that Plaintiffs' Request for a Preliminary Injunction [Doc. # 39] is DENIED. It is further ORDERED that Plaintiffs' counsel is to have this Memorandum and Order, and each of the attached exhibits, translated — in writing — into Spanish. Both the Spanish and English versions are to be distributed to each Plaintiff no later than January 31, 2008. Plaintiffs' counsel is responsible for the accuracy of the translation.

City of Houston, Texas, Ordinance No. 2007-_____

AN ORDINANCE AMENDING SECTION 20-22 OF THE CODE OF ORDINANCES, HOUSTON, TEXAS, RELATING TO MOBILE FOOD UNITS AND COMMISSARIES; CONTAINING FINDINGS AND OTHER PROVISIONS RELATING TO THE FOREGOING SUBJECT; DECLARING CERTAIN CONDUCT TO BE UNLAWFUL AND PROVIDING PENALTIES THEREFOR; CONTAINING A SAVINGS CLAUSE; PROVIDING FOR SEVERABILITY; AND DECLARING AN EMERGENCY.

* * * * *

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON, TEXAS: Section 1. That Section 20-22 of the Code of Ordinances, Houston, Texas, is hereby amended to read as follows:

"Sec. 20-22. Mobile food units and commissaries.

(a) Definitions. When used in this subsection, the following words, terms and phrases shall have the meanings ascribed to them in this subsection, unless the context clearly indicates a different meaning:

Catering establishment shall have the meaning ascribed in section 20-18 of this Code.

Commissary shall have the meaning ascribed in section 20-18 of this Code.

Fixed location mobile food unit shall mean a mobile food unit that is restricted to operation on the premises of a permitted food establishment that serves as the commissary for the fixed location unit. A fixed location unit must be easily movable and maneuverable by one person when the unit is fully loaded.

Food service establishment shall have the meaning ascribed in section 20-18 of this Code.

Licensed park vendor shall mean a mobile food unit used by a vendor licensed under article IX of Chapter 32 of this Code.

Mobile food unit shall have the meaning ascribed in section 20-18 of this Code.

Restricted operations mobile food unit shall mean a mobile food unit that serves no food other than: (1) food that was prepared and packaged in individual servings at an approved commissary and transported and stored under conditions meeting the requirements of this article; (2) beverages that are not potentially hazardous and are dispensed from covered urns or other protected equipment; (3) potentially hazardous beverages such as individual servings of milk, milk products and coffee creams that have been packaged at a pasteurizing plant; and (4) prepackaged individual serving frozen dessert items including, without limitation, frozen ice and ice cream novelty bars, cones and serving cups that have been packaged at a pasteurizing plant or other approved facility.

(b) General. All mobile food units shall comply with all applicable laws, including the requirements of this article, except as otherwise provided in this section. The health officer may impose additional requirements to protect against health hazards related to the conduct of mobile food units and may prohibit the sale of potentially hazardous foods. The provisions of this section shall be enforceable by any peace officer or health officer.

(c) Issuance of medallions for operation of mobile food units.

(1) Medallions. All mobile food units shall obtain a medallion from the department prior to operating. Operation of a mobile food unit without a medallion is prohibited.

(2) Submission of plans. Prior to the issuance of a medallion, the operator of a mobile food unit, other than a restricted operations mobile food unit, shall provide the following to the department:

a. A written standard operating procedure for each mobile food unit that must include provisions for:

[1] Food unit's waste water disposal site and process; and

[2] Other servicing operations details; and

b. Two sets of drawings that must clearly specify and address the proposed layout, surface finish schedule, arrangement and construction material of the mobile food unit, and that must include, without limitation, the proposed layout, arrangement and sizes of plumbing fixtures and connections.

The provisions of this item (2) shall not be applicable to renewals, provided that the applicant certifies in writing to the health officer that the previously provided procedures and plans are still valid.

(3) Locations of operation. Prior to the issuance of any initial or renewal medallion, the operator of a mobile food unit, other than a restricted operations mobile food unit, shall submit to the department a list of locations where the mobile food unit will be in operation. The operator shall also give written notice at least two business days prior to beginning operations at or relocating operations to any location not currently included on the list of active locations submitted to the department.

(4) Operation on private property. Prior to the issuance of a medallion or renewal, the operator of a mobile food unit that will be operated on private property for more than one hour in a single day shall submit to the department proof of ownership of the property or a signed and notarized written statement from the owner or owner's agent, including the name, address and telephone number of the property owner or authorized agent, granting permission for operation of the mobile food unit at the proposed location. If the property owner is a partnership or corporation, the statement shall include the name, address, and telephone number of one of the partners or officers. A copy of the statement shall be displayed in the mobile food unit in plain view of the public at all times. The operator of a mobile food unit shall immediately cease operations and remove the mobile food unit from said property upon receipt of a citation for a violation of this subsection.

(5) Access to toilets. Prior to the issuance of a medallion or renewal, the operator of a mobile food unit, other than a restricted operations mobile food unit, a licensed park vending unit or a fixed location mobile food unit, to be operated on private property shall submit to the department proof of availability of restrooms with flushable toilets for the use of the mobile food unit employees located in a business establishment within 500 feet of each location where the mobile food unit will be in operation for more than 1 hour in any single day. Proof of availability of adequate facilities shall be in the form of a written statement from the owner or owner's agent, including the name, address and telephone number of the property owner or authorized agent, and the type of business and hours or operation, granting permission for use of the facilities. If the business owner is a partnership or corporation, the statement shall include the name, address, and telephone number of one of the partners or officers. A copy of the statement shall be displayed in the mobile food unit in plain view of the public at all times. The operator of a mobile food unit shall immediately cease operations and remove the mobile food unit from said property upon receipt of a citation for a violation of this subsection.

(6) Signage. Every mobile food unit must be readily identifiable by business name, printed, permanently affixed, and prominently displayed upon at least two sides of the units, in letters not less than three inches in height.

(7) Mobility. A mobile food unit must demonstrate mobility at any reasonable time if requested by any peace officer or health officer.

(8) Use of LP-gas. The operator of a mobile food unit in, on or in conjunction with which LP-gas is used to cook or otherwise prepare food shall obtain from the fire department a permit for the use of LP-gas and LP-gas equipment for each mobile food unit and shall make the permit available for inspection and/or copying upon the request of any peace officer, fire department employee, or health officer.

(d) Sanitation. In addition to complying with the requirements of this section, all mobile food units shall comply with the following items of sanitation:

(1) Single-service articles. Mobile food units shall provide only single-service articles for use by the consumer.

(2) Water systems. A mobile food unit, other than a restricted operations mobile food unit, shall have a potable water system under pressure. All water used in connection with the mobile food unit shall be from sources approved by the health officer. The water system shall include a potable water tank of not less than 30 gallons capacity for conventional mobile food units and not less than 5 gallons capacity for units used by a vendor licensed under chapter 32, article IX of this Code and for fixed location mobile food units. The system shall be of sufficient capacity to furnish enough hot and cold water for food preparation, utensil cleaning and sanitization, and hand-washing, in accordance with the requirements of this article. The water inlet shall be located so that it will not be contaminated by waste discharge, road dust, oil, or grease, and it shall be provided with a transition connection of a size or type that will prevent its use for any other service. All water distribution pipes or tubing and potable water tanks shall be constructed of materials meeting standards established by an American National Standards Institute (ANSI) or other approved accredited certification program and installed according to the requirements of this article. Connection to a water system at an operational location is prohibited. The water system shall comply with the following additional items:

a. Tank design and construction. A mobile food unit's water tank shall be enclosed from the filling inlet to the discharge outlet and sloped to an outlet that allows complete drainage of the tank.

b. Tank inspection and cleaning port, protected and secured. If a water tank is designed with an access port for inspection and cleaning, the opening shall be in the top of the tank and:

[1] Flanged upward at least 13 mm (one-half inch);

[2] Equipped with a port cover assembly that is provided with a gasket and a device for securing the cover in place; and

[3] Flanged to overlap the opening and sloped to drain.

c. `V' type threads, use limitation. A fitting with `V' type threads on water tank inlets or outlets shall be allowed only when a hose is permanently attached.

d. Tank vent, protected. If provided, a water tank vent shall terminate in a downward direction and shall be covered with;

[1] A screen of 16 mesh to one inch or equivalent when the vent is in a protected area; or

[2] A protective filter when the vent is in an area that is not protected from wind blown dirt and debris.

e. Protective cover or device. A cap and keeper chain, closed cabinet, closed storage tube, or other approved protective cover or device shall be provided for each water inlet, outlet, and hose.

(3) Mobile food establishment water tanks, when required. Materials that are used in the construction of a mobile food unit water tank and appurtenances shall be safe, durable, corrosion-resistant, and nonabsorbent, and finished to have an easily cleanable surface.

a. Tank hose, construction and identification. A hose used for conveying drinking water from a water tank shall be safe; durable, corrosion-resistant, and nonabsorbent; resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition; finished with a smooth interior surface; and clearly and durably identified as to its use if not permanently attached.

b. Tank filter, compressed air. A filter that does not pass oil or oil vapors shall be installed in the air supply line between the compressor and the drinking water system when compressed air is used to pressurize the water tank system.

c. Mobile food unit tank inlet. A mobile food unit water tank inlet shall be 19.1 mm (three-fourths inch) in inner diameter or less and provided with a hose connection of the size or type that will prevent its use for any other service.

d. Operation and maintenance system flushing. A water tank, pump, and hoses shall be flushed and sanitized at an approved commissary before being placed in service after construction, repair, modification, and periods of nonuse.

e. Using a pump and hoses; backflow prevention. An individual shall operate a water tank, pump, and hoses so that backflow and other contamination of the water supply are prevented.

f. Protecting inlets, outlets, and hose fittings. If not in use, a water tank and hose inlet and outlet fittings shall be protected using a cover or device as specified in sub-item g below.

g. Tank, pump, and hoses; dedication. A water tank, pump, and hoses used for conveying drinking water shall be used for no other purpose. Water tanks, pumps, and hoses approved for liquid foods may be used for conveying drinking water if they are cleaned and sanitized before they are used to convey water.

(4) Waste retention. If liquid waste results from operation of a mobile food unit, it shall be stored in permanently installed vented retention tanks that are at least 15 percent larger than the water supply tank. A mobile food unit waste retention tank shall be sloped to an outlet that allows complete drainage of the tank during servicing operations. Liquid waste shall not be discharged from the retention tank when the mobile food unit is in motion or at an operational location. All connections on the vehicle for servicing mobile food unit waste disposal facilities shall be of a different size or type than those used for supplying potable water to the food unit. The waste connection shall be located below the water connection to preclude contamination of the potable water system. Connection to a sewerage system at an operational location is prohibited.

(5) Garbage and refuse. A mobile food unit shall have adequate and approved garbage and refuse storage facilities for the operator's use and shall have garbage and refuse storage facilities attached to the exterior of the mobile food unit that are insect and rodent-proof for customers' use. Disposal shall be in accordance with section 20-21.20 of this Code.

(6) Damage report. Any accident involving a mobile food unit shall be reported within 24 hours of the time the accident occurred if the accident results in damage to the water system, waste retention tank, food service equipment, or any facility that may result in the contamination of the food being carried or any damage that results in a violation of this section. Reports shall be made by the holder of the mobile food unit medallion.

(7) Operation capacity limited. The operator of a mobile food unit shall prepare, serve, store and display food and beverages on or in the mobile food unit itself and shall not attach, set up or use any other device or equipment intended to increase selling, serving, storage, or display capacity of the mobile food unit. It shall be unlawful for the operator of a mobile food unit to:

a. Allow items, such as but not limited to brooms, mops, hoses, equipment, containers and boxes or cartons, to remain adjacent to or beneath the mobile food unit;

b. Provide or allow any sign or banner to remain that is not attached to and solely supported by the mobile food unit;

c. Provide or allow any canopy, awning or other covering that is not attached to and solely supported by the mobile food unit to remain over any part of the mobile food unit or over any area within 100 feet of the mobile food unit, except that any awning or covering provided by others and primarily used for other purposes and only incidentally or coincidentally used by the mobile food unit shall not be considered a violation of this subsection;

d. Provide or allow any portable toilet facility within 100 feet of the mobile food unit; and

e. Provide or allow any dining area, including but not limited to tables, chairs, booths, bar stools, benches, and standup counters, within 100 feet of the mobile food unit. Dining areas or seating areas adjacent to fixed location mobile food units operating inside of an enclosed space such as a mall or lobby or park vending units where the seating is provided by someone other than the mobile food unit operator and only incidentally or coincidentally used by the patrons of the mobile food unit are acceptable if approved by the health officer.

(8) Utility connections. Utility connections, if any, shall be limited to quick-connect electrical and telephone services and shall be in full compliance with the Electrical Code. Utility connections for water, sewerage and gas are prohibited.

(9) Exterior surfaces. Exterior surfaces of mobile food units shall be of weather-resistant materials and shall comply with all applicable laws.

(e) Servicing of mobile food units by commissaries; servicing records.

(1) Servicing by commissaries. Mobile food units, other than restricted service mobile food units, shall operate from a commissary approved by the health officer and shall report to such location for supplies, cleaning, and servicing operations as follows:

a. Fixed location mobile food units shall return to the commissary at least once per day of operation for the performance of all servicing operations.

b. Licensed park vendor mobile food units shall return to the commissary at least once per day of operation for the performance of all servicing operations.

c. All other mobile food units shall return to the commissary for the performance of all servicing operations within the 24-hour period preceding operations.

(2) Servicing records. It shall be unlawful for an operator of a mobile food unit, other than a restricted service mobile food unit, to be in operation without a valid servicing record in his possession.

(3) Servicing records to be kept by mobile food unit operators. The operator of a mobile food unit, other than a restricted operations mobile food unit, shall keep and maintain servicing records on the mobile food unit for a period of one year from the date of servicing. The servicing records must be immediately available to any peace officer or health officer for inspection and copy at the mobile food unit during the mobile food unit's hours of operation.

(4) Servicing records to be kept by commissaries. The commissary from which a mobile food unit operates shall issue and maintain servicing records for each mobile food unit in a manner and form prescribed by the health officer. The permit holder, person in charge, employee, or representative of any commissary shall keep and maintain servicing records at the commissary for a period of two years from the date of servicing or until retrieved by the health officer, whichever comes first. Servicing records maintained at the commissary shall be immediately available to any peace officer or health officer for inspection and copying during normal business hours.

(5) Falsification of servicing records. It shall be unlawful for an owner, permit holder, person in charge, employee, or representative of any commissary to issue a servicing record without first verifying that the mobile unit has complied with all servicing requirements. It shall be unlawful for any owner, permit holder, person in charge, employee, or representative of any commissary or mobile food unit to knowingly present or issue any false, fraudulent, or untruthful servicing record for the purpose of demonstrating compliance with this subsection.

(6) Maintenance of servicing records. The health officer may promulgate rules and procedures regarding maintenance of the servicing records by the commissaries and mobile food units. The health officer may require the use of electronic or other technology to facilitate or monitor compliance with the requirements of this chapter.

(f) Commissaries.

(1) Permitting of commissaries as food establishments. A commissary servicing any mobile food unit, other than a restricted service mobile food unit shall be an approved and permitted food establishment at which the mobile food unit is supplied with fresh water, emptied of waste water into a proper waste disposal system, and cleaned, including washing, rinsing, and sanitizing of those food-contact surfaces or items not capable of being immersed in the mobile food unit utensil-washing sink.

(2) Permitting of commissaries as food dealers. A commissary shall acquire and maintain a valid food dealer's permit and meet all requirements of this article including, but not limited to:

a. Maintenance of proper structures pursuant to section 20-21.28 of this Code;

b. Issuance and maintenance of servicing records and maintenance of equipment pursuant to subsection 20-22(c) and (h) of this Code; and

c. Compliance with all other applicable rules and operational guidelines as may be promulgated by the health officer.

(3) Private residences. Use of a private residence as a commissary is prohibited.

(4) Commissary servicing area and operations.

a. An enclosed service building separated from commissary operations shall be provided for supplying and maintaining mobile food units. The servicing area shall be at an approved location and constructed and operated in compliance with the requirements of this article. Fixed location mobile food units authorized under this article and mobile food units licensed under article IX of Chapter 32 of this Code shall be stored in the servicing area except while in operation for food service and during transport to and from the service building. A fixed location mobile food unit that does not fully meet the foregoing storage requirements and was first operated under a medallion on or before February 13, 2000, shall be exempt from this requirement provided that the operation continues under the same ownership and the medallion is continuously renewed without lapse or termination and provided that the permit holder uses alternative storage arrangements that are approved by the health officer.

b. Servicing operations.

[1] Potable water-servicing equipment shall be stored and handled in a way that protects the water and equipment from contamination.

[2] The mobile food unit liquid waste retention tank, where used, shall be thoroughly flushed and drained during the servicing operation. All liquid waste shall be discharged to a sanitary sewage disposal system in accordance with section 20-21.16 of this Code. The flushing and draining area for liquid wastes shall be separate from the area used for loading and unloading of food and related supplies.

[3] Vehicle cleaning and in-place cleaning of nonfood-contact surfaces of equipment not requiring sanitization shall be done with potable water and shall be done in a manner that will not contaminate the vehicle's food storage or food preparation areas or equipment. If hoses are used in the cleaning process, they shall be food-grade and kept off the floor or pavement, on racks or by other approved suitable means, and the system shall meet the requirements of section 20-21.17 of this Code. All cleaning areas shall be paved with a smooth surface of nonabsorbent material such as concrete or machine-laid asphalt, which is sloped to drain toward an approved catch basin or floor drain where the liquid waste can be disposed of in accordance with the requirements of section 20-21.16 of this Code.

[4] The use of liquid waste transport vehicles, otherwise known as vacuum trucks, for the removal and disposal of liquid waste resulting from mobile food unit operations is prohibited. Provided, however, that a fixed location mobile food unit operating exclusively in a permanent nonresidential building that is primarily used for other purposes, such as a retail shopping mall, office atrium, or hospital lobby, may utilize other means to fill water tanks and to drain and flush wastewater tanks if approved by the health officer.

[5] Servicing operations may be performed by the commissary operator or by the mobile food unit operator. It shall be the commissary operator's responsibility to observe or perform servicing on each mobile food unit and properly complete a servicing record as prescribed by the health officer. It is the responsibility of the mobile food unit operator to confirm that the requirements of this section are fulfilled prior to resuming operations.

(g) Special requirements for mobile food units operated by licensed park vendors. In addition to complying with the other applicable requirements of this chapter, a mobile food unit operated by a vendor licensed under article IX of chapter 32 of this Code, must meet the following requirements:

(1) A unit shall not exceed four feet in width, eight feet in length and eight feet in height including the unit's shade umbrella. In the event of an emergency, the unit must be easily movable, controllable, and maneuverable by one person when the unit is fully loaded. A unit shall have at least two operable rubber or rubber-like wheels that are less than eight inches in diameter. The bottom of the unit shall be at least one foot from the ground. The unit shall be non-motorized.

(2) Each unit shall have protective glass guards and a roof or a shade umbrella to protect against exposure to insects, rodents, dust, or other contamination. Each unit shall have ample space available on the sides of the unit to display the prices of food, the name and street address of the vendor, and the medallion issued under section 20-37 of this Code.

(3) Each unit shall have a litter receptacle attached to the unit available, clearly marked, and maintained for patron use. This litter receptacle shall have not less than a twenty-gallon capacity and shall be composed of a leak-proof, nonabsorbent material.

(4) The interior of a unit shall be equipped with cabinet units or compartments. All food-contact surfaces shall be smooth, easily accessible and cleanable. Unfinished or painted wood shall not be used as a food-contact surface. Units that will dispense beverages must be equipped to do so from a closed carbonation system or bulk dispensing units or to distribute packaged beverages.

(h) Special requirements for fixed location mobile food units. A mobile food unit that does not meet all criteria applicable to the permitting of a conventional mobile food unit may be permitted on a fixed location only basis, provided:

(1) The unit complies with the same criteria stated in items (1), (2), (3) and (4) of subsection (g) above for units operated by licensed park vendors;

(2) The unit shall be restricted to operation on the premises of one food establishment that holds a valid permit under this article, and the commissary serving the unit shall be located in that establishment; and

(3) The commissary shall meet all applicable requirements of state law and city ordinances.

A fixed location mobile food unit that does not fully meet the requirements of item (1) of subsection (g) above and was first operated under a medallion on or before February 13, 2000, shall be exempt from the requirements of item (1) of subsection (g) above provided that the operation continues under the same ownership and the medallion is continuously renewed without lapse or termination.

If the operator of the unit is not the operator of the food establishment, then the operator shall be required to furnish written proof of permission of the person who operates the food establishment premises to utilize the unit and commissary on the premises. In the event that the permit issued under this article for the food establishment on whose premises the unit and its commissary are situated expires without timely renewal or is revoked or suspended, the unit's medallion shall automatically be suspended until and unless the permit for the food establishment is restored to valid status.

(i) Alternatives; waivers. The director of health and human services or any assistant or deputy director may authorize alternatives to particular requirements of this section or any other provisions of this article with respect to a mobile food unit. Any authorization shall be considered only upon written request, which shall set forth the provision for which an alternative is sought and the nature of the proposed alternative. Approval for the alternative shall be granted if it is determined that, for the purpose intended, the alternative proposed is at least equivalent to the requirement otherwise specified in this article with respect to safety, sanitation and related purposes. The burden of demonstrating compliance with the foregoing standard shall be upon the requestor. Consistent with the foregoing procedures and standards, the director of health and human services or any assistant or deputy director may waive any requirement of this article upon demonstration that it has no applicability for the purposes intended herein to the operation of the mobile food unit. An approval issued under this section shall be valid only if issued in writing and shall be limited in scope as provided therein.

(j) Enforcement of this article. Failure by a mobile food unit or a commissary to comply with the requirements set forth in this article or rules promulgated by the health officer shall be unlawful and may result in one or more of the following penalties:

(1) Immediate cessation of operations;

(2) The suspension or revocation of the mobile food unit's medallion or the food dealer's permit for that commissary pursuant to sections 20-41 and 20-42 of this Code;

(3) The issuance of a citation for a class C misdemeanor pursuant to subsection 20-19(c) of this Code for every day of noncompliance;

(4) The filing of a criminal charge under Section 37.10 of the Texas Penal Code for the offense of Tampering with Governmental Record; and

(5) The filing of a suit in district court by the city attorney to enjoin a food service establishment from operating without a permit or a medallion if a permit or medallion is required.

(k) Additional offense. It shall be unlawful for an owner, permit holder, person in charge, employee, or representative of any commissary or mobile food unit to remove, disable or otherwise tamper with any electronic technology installed to facilitate or monitor compliance with the requirements of this chapter."

Section 2. That Section 20-18 of the Code of Ordinances, Houston, Texas, is hereby amended by amending the definition of food preparation area or kitchen to read as follows:

" Food preparation area or kitchen shall mean each physically separated area of a food establishment in which food is manufactured, produced, prepared, processed or packaged. In the instance of mobile food units, each mobile food unit that does not meet the criteria for restricted operations established in section 20-22(a) of this Code shall constitute a food preparation area or kitchen."

Section 3. That the various former ordinance provisions that are amended in Section 1 of this Ordinance are saved from repeal for the limited purpose of their continuing application to any violation committed before the effective date of this Ordinance, as applicable. For this purpose, a violation is deemed to have been committed before the effective date of this Ordinance, as applicable, if any element of the offense was committed prior to the effective date of this Ordinance, as applicable.

Section 4. That, if any provision, section, subsection, sentence, clause, or phrase of this Ordinance, or the application of same to any person or set of circumstances, is for any reason held to be unconstitutional, void or invalid, the validity of the remaining portions of this Ordinance or their application to other persons or sets of circumstances shall not be affected thereby, it being the intent of the City Council in adopting this Ordinance that no portion hereof or provision or regulation contained herein shall become inoperative or fail by reason of any unconstitutionality, voidness or invalidity of any other portion hereof, and all provisions of this Ordinance are declared to be severable for that purpose.

Section 4. That there exists a public emergency requiring that this Ordinance be passed finally on the date of its introduction as requested in writing by the Mayor; therefore, this Ordinance shall be passed finally on such date and shall take effect at 12:01 a.m. on the sixtieth day next following the date of its passage and approval by the Mayor.

PASSED AND APPROVED this 19th day of September , 2007.

____________________________________ Mayor of the City of Houston Prepared by Legal Dept. ___________________________________________ MNA: asw 08/20/2007 Assistant City Attorney Requested by Stephen L. Williams, Director, Health and Human Services Department L.D. File No. ____________ Exhibit

Sec. 20-22. Mobile food service.

(a) General. Mobile food units shall comply with all applicable laws, including the requirements of this article, except as otherwise provided in this section. The health officer may impose additional requirements to protect against health hazards related to the conduct of the food service establishment as a mobile operation and may prohibit the sale of some or all potentially hazardous foods.

(b) Notice of locations. Before he shall first receive his medallion, and every year before his medallion is renewed, the operator of a mobile food unit other than a restricted operations mobile food unit, a licensed park vending unit or a fixed location mobile food unit shall submit to the department a list of locations where his mobile food units will be in operation and shall also give written notice within 24 hours of any location added to his list of locations where his mobile food units will be in operation.

(c) Servicing records. Upon request, the operator of a mobile food unit other than a restricted operations mobile food unit shall provide written proof that the mobile food unit has been serviced at an approved commissary on a daily basis. These servicing records shall be maintained in duplicate, with one copy kept in the mobile food unit and the other copy at the commissary used by the mobile food unit. Each record shall be kept and maintained for a period of two years from the date of servicing so that they are immediately available to the health officer for inspection and copying during normal working hours. The records shall be in a form prescribed by the health officer.

(d) Standards and drawings. The health officer shall not issue any permit/medallion for a mobile food unit other than a restricted operations mobile food unit as described in subsection (e) below, unless and until the operator of the mobile food unit has provided to the department:

(1) A written standard operating procedure for each mobile food unit that must include provisions for:

a. The mobile food unit's water supply source and process;

b. The mobile food unit's waste water disposal site and process; and

c. Other servicing operations details; and

(2) Two sets of drawings that must clearly specify and address the proposed layout, surface finish schedule, arrangement and construction material of the mobile food unit, and that must include, without limitation, the proposed layout, arrangement and sizes of plumbing fixtures and connections.

The provisions of this subsection shall not be applicable to renewals, provided that the applicant certifies in writing to the health officer that the previously provided procedures and plans are still valid.

(e) Restricted operations. A mobile food unit that serves no food other than:

(1) Food that was prepared and packaged in individual servings at an approved commissary and transported and stored under conditions meeting the requirements of this article;

(2) Beverages that are not potentially hazardous and are dispensed from covered urns or other protected equipment;

(3) Potentially hazardous beverages such as individual servings of milk, milk products and coffee creams that have been packaged at a pasteurizing plant; and

(4) Prepackaged individual serving frozen dessert items including, without limitation, frozen ice and ice cream novelty bars, cones and serving cups that have been packaged at a pasteurizing plant or other approved facility;

shall be regarded as a restricted operations mobile food unit and need not comply with requirements of this article pertaining to the necessity of potable water and sewage systems or to the cleaning and sanitation of equipment and utensils if the required equipment for cleaning and sanitation exists at its commissary, nor with the requirement that the servicing area be located in an enclosed building.

(f) Identification of mobile food units. Every mobile food unit must be readily identifiable by business name, printed, permanently affixed, and prominently displayed upon at least two sides of the units, in letters not less than three inches in height.

(g) Commissary; general. Mobile food units shall operate from a commissary or other fixed food service establishment that is constructed and operated in compliance with the requirements of this article and other applicable laws. Using a private residence as a commissary for a mobile food unit is prohibited.

The commissary servicing any mobile food unit other than a restricted operations mobile food unit shall be an approved and permitted food establishment at which the mobile food unit is supplied with fresh water, emptied of waste water into a proper waste disposal system, and cleaned, including washing, rinsing, and sanitizing of those food-contact surfaces or items not capable of being immersed in the mobile food unit utensil-washing sink.

Each mobile food unit other than a restricted operations mobile food unit shall return to the commissary at least once per each day of operation for the performance of all servicing operations. The use of liquid waste transport vehicles, otherwise known as vacuum trucks, for the removal and disposal of liquid waste resulting from mobile food unit operations is prohibited. Provided, however, that a fixed location mobile food unit operating exclusively in a permanent nonresidential building that is primarily used for other purposes, such as a retail shopping mall, office atrium, or hospital lobby, may utilize other means to fill water tanks and to drain and flush wastewater tanks if approved by the health officer.

(h) Servicing area and operations.

(1) Servicing area.

An enclosed service building separated from commissary operations shall be provided for supplying and maintaining mobile food units. Fixed location mobile food units authorized under this article and mobile food units licensed under article IX of Chapter 32 of this Code shall be stored in the servicing area except while in operation for food service and during transport to and from the service building. A fixed location mobile food unit that does not fully meet the foregoing storage requirements and is permitted on or before February 13, 2000 shall be exempt from this requirement provided that the operation continues under the same ownership and the permit and medallion is continuously renewed without lapse or termination and provided that the permit holder uses alternative storage arrangements that are approved by the health officer. The servicing area shall be at an approved location and constructed and operated in compliance with the requirements of this article.

(2) Servicing operations.

a. Potable water-servicing equipment shall be stored and handled in a way that protects the water and equipment from contamination.

b. The mobile food unit liquid waste retention tank, where used, shall be thoroughly flushed and drained during the servicing operation. All liquid waste shall be discharged to a sanitary sewage disposal system in accordance with section 20-21.16 of this Code. The flushing and draining area for liquid wastes shall be separate from the area used for loading and unloading of food and related supplies.

c. Vehicle cleaning and in-place cleaning of nonfood-contact surfaces of equipment not requiring sanitization shall be done with potable water and shall be done in a manner that will not contaminate the vehicle's food storage or food preparation areas or equipment. If hoses are used in the cleaning process, they shall be kept off the floor or pavement, on racks or by other approved suitable means, and the system shall meet the requirements of section 20-21.17 of this Code. All cleaning areas shall be paved with a smooth surface of nonabsorbent material such as concrete or machine-laid asphalt, which is sloped to drain toward an approved catch basin or floor drain where the liquid waste can be disposed of in accordance with the requirements of section 20-21.16 of this Code.

(i) Items of sanitation. In addition to complying with the requirements of this section, all mobile food units shall comply with the following items of sanitation:

(1) Item 1. Single-service articles. Mobile food units shall provide only single-service articles for use by the consumer.

(2) Item 2. Water systems. A mobile food unit requiring a water system shall have a potable water system under pressure. All water used in connection with the mobile food unit shall be from sources approved by the health officer. The water system shall include a potable water tank of not less than 30 gallons capacity for conventional mobile food units and not less than 5 gallons capacity for units used by a vendor licensed under Chapter 32, article IX of this Code and for fixed location mobile food units. The system shall be of sufficient capacity to furnish enough hot and cold water for food preparation, utensil cleaning and sanitization, and hand-washing, in accordance with the requirements of this article. The water inlet shall be located so that it will not be contaminated by waste discharge, road dust, oil, or grease, and it shall be provided with a transition connection of a size or type that will prevent its use for any other service. All water distribution pipes or tubing and potable water tanks shall be constructed of materials meeting standards established by an American National Standards Institute (ANSI) or other approved accredited certification program and installed according to the requirements of this article. Connection to a water system at an operational location is prohibited.

(3) Item 3. Waste retention. If liquid waste results from operation of a mobile food unit, it shall be stored in permanently installed retention tanks that are at least 15 percent larger than the water supply tank. A mobile food unit waste retention tank shall be sloped to an outlet that allows complete drainage of the tank during servicing operations. Liquid waste shall not be discharged from the retention tank when the mobile food unit is in motion or at an operational location. All connections on the vehicle for servicing mobile food unit waste disposal facilities shall be of a different size or type than those used for supplying potable water to the food unit. The waste connection shall be located below the water connection to preclude contamination of the potable water system. Connection to a sewerage system at an operational location is prohibited.

(4) Item 4. Garbage and refuse. A mobile food unit shall have adequate and approved garbage and refuse storage facilities. Disposal shall be in accordance with section 20-21.20 of this Code.

(5) Item 5. Damage report. Any accident involving a mobile food unit shall be reported within 24 hours of the time the accident occurred if the accident results in damage to the water system, waste retention tank, food service equipment, or any facility that may result in the contamination of the food being carried or any damage that results in a violation of this section. Reports shall be made by the holder of the mobile food unit medallion.

(6) Item 6. Operation capacity limited. The owner/operator of a mobile food unit shall serve, store and display food and beverages on or in the mobile food unit itself and shall not attach, set up or use any other device or equipment intended to increase selling, serving or display capacity of the mobile food unit. It shall be unlawful for the owner/operator of a mobile food unit to provide any dining area for the customers of the mobile food unit.

permission of the person who operates the food establishment premises to utilize the unit and commissary on the premises. In the event that the permit issued under this article for the food establishment on whose premises the unit and its commissary are situated expires without timely renewal or is revoked or suspended, the unit's medallion and commissary permit, if any, shall automatically be suspended until and unless the permit for the food establishment is restored to valid status.

(I) Alternatives; waivers. The director of health and human services or any assistant or deputy director may authorize alternatives to particular requirements of this section or any other provisions of this article with respect to a mobile food unit. Any authorization shall be considered only upon written request, which shall set forth the provision for which an alternative is sought and the nature of the proposed alternative. Approval for the alternative shall be granted if it is determined that, for the purpose intended, the alternative proposed is at least equivalent to the requirement otherwise specified in this article with respect to safety, sanitation and related purposes. The burden of demonstrating compliance with the foregoing standard shall be upon the requestor. Consistent with the foregoing procedures and standards, the director of health and human services or any assistant or deputy director may waive any requirement of this article upon demonstration that it has no applicability for the purposes intended herein to the operation of the mobile food unit. An approval issued under this section shall be valid only if issued in writing and shall be limited in scope as provided therein.