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10 Catt. 5: In re Dippin’ Dots

2012 June 27
by CATTLEYA, J.

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., wrote a separate concurrence.

At the invitation of a community group, I recently attended an event during which the caterers arranged to bring a Dippin’ Dots ice cream cart into the reception hall for the enjoyment of the guests gathered there. The question before us today is whether this Dippin’ Dots cart is within the Supreme Cart’s jurisdiction. May the Cart review its ice creams?

Dippin’ Dots

I. JURISDICTION

At first glance, it appears that our first jurisdictional decision, In re China Garden, 5 Catt. 1 (2012), resolves the matter easily. China Garden interpreted the term “mobile gastronomic enterprise” from our Rules of Procedure. Rule 1-2 states the following:

 The jurisdiction of the Cart shall extend to all mobile gastronomic enterprises situated throughout those parts of (a) the County of Arlington, Virginia, (b) the District of Columbia, and (c) the City of Alexandria, Virginia, which are reasonably proximate to public transportation of a reasonably rapid and efficient character.

In China Garden, we found that “mobile” modified both “gastronomic” and “enterprise.” In other words, not only must the food be mobile, but the establishment selling the food must be mobile too. Thus, we did not have jurisdiction over a pushcart that was operated inside a fixed, brick-and-mortar restaurant. Even though the food was mobile, the restaurant was not.

Although it may seem that the instant case – a pushcart inside an event hall – is nearly identical to a pushcart inside a restaurant, China Garden does not answer our question or end our analysis. The most obvious distinction between the two cases – a pushcart inside an unaffiliated event hall versus an affiliated restaurant – could very well be significant. While the pushcart in China Garden was not equipped to serve customers outside the restaurant, the Dippin’ Dot cart was not affiliated with the event hall and easily could have been moved to another indoor or outdoor venue. Indeed, that is its purpose. (For example, Smithsonian features outdoor Dippin’ Dots carts during the warmer months.) Thus, China Garden’s pushcart was merely an arm of its enterprise. On the other hand, the Dippin’ Dots cart was an enterprise of its own.

Even if this reasoning were not enough to push the Dippin’ Dots cart into our jurisdiction, there is another basis – a stronger one – to find that the Supreme Cart has jurisdiction in this case. Dippin’ Dots is distributed throughout the country; its ice creams are sold at various franchised locations. Currently, one of its franchisees is a food truck that operates in DC. We unquestionably have jurisdiction over this Dippin’ Dots truck. Does that jurisdiction extend to the Dippin’ Dots cart at issue in this case?

In our second jurisdictional decision, In re Pupatella, we denied jurisdiction to a brick-and-mortar restaurant that previously operated as a food cart, but “we [left] open the question of whether this court’s jurisdiction extends to a brick-and-mortar restaurant that concurrently operates a food cart.” 8 Catt. 4 (2012). Before we answer that question, today we are faced with an easier question. Does this court have jurisdiction over a pushcart affiliated with a food truck that is in our jurisdiction?

The answer, of course, is yes. The pushcart vends the same ice cream products as the food truck. A review of the cart’s ice cream is a review of the truck’s ice cream. The substance is the same, and the substance should trump the form. Justice is served with this result because Dippin’ Dots gets its day before the Supreme Cart and the reader gets a review of Dippin’ Dots’s ice cream products.

II. STREET FOOD

Ice cream is true street food. In re Sinplicity, 9 Catt. 3 (2012) (finding that ice cream is street food); see also In re Eat Wonky (The Whoopie Pie Case), 2 Catt. 5 (2011) (defining street food as “the kind[] of food[] that can be cooked in front of you and [is] meant to be eaten with your hands, without forks, while standing up”). Because ice cream is street food, this Supreme Cart presumes that Dippin’ Dots’s ice cream should be affirmed unless we can rebut this presumption. See In re Big Cheese, 6 Catt. 2 (2012).

 III. DIPPIN’ DOTS ORIGINAL DOTS ICE CREAM

Our reader has probably come across Dippin’ Dots at an amusement park, a stadium, or another venue that attracts a youthful crowd. A serving of Dippin’ Dots – billed as “the ice cream of the future” – consists of tiny beads of ice cream. Dippin’ Dots explains that the beads are “cryogenically frozen” and the flash frozen beads must be stored at 40 degrees below zero. The bead shape allows “[k]ids (of all ages) [to] actually play with their food.” I tasted two flavors of original dots ice cream: (1) cookies ‘n cream and (2) bubble gum.

Cookies ‘n Cream

Cookies ‘n cream is vanilla beads with pieces of Oreo cookies. It tasted like classic cookies ‘n cream, but the cream was not very creamy on the tongue, since the ice cream component was broken down into many little pieces. The vanilla flavor was not very strong either. When the beads hit my tongue, I felt the coldness of the beads more than I tasted any flavor from them. The flavor came mostly from the Oreo bits. Still, I enjoyed the cookies ‘n cream. It was a different kind of ice cream and it would not be my first choice, but it wasn’t bad and I’d eat it again if it were there, and I were there, and the day were a hot one.

Bubble Gum

Bubble gum is a mix of blue, red, and yellow bubble gum. When I ordered this, I was mistakenly told that the flavor was called “rainbow” and I was unaware of its true name. As soon as I tried a spoonful, I thought to myself, “This tastes like bubble gum.” So, Dippin’ Dots nailed the bubble gum flavor. Unfortunately, the flavor was too sugary sweet and artificial for me. One bite was enough. I imagine, however, that sweet-toothed kids would appreciate it. Like the cookies ‘n cream, the bubble gum was not a very creamy ice cream. When the leftover beads in my cup melted, what remained were puddles of what looked like thin, watery (as opposed to something thick and creamy) puddles of food coloring. I suspect that the choice of ice cream ingredients, in addition to the bead shape, contributed to the less than creamy ice cream product.

IV. CONCLUSION

Dippin’ Dots was fun to try. It would not top my list of favorite frozen treats, but the reasons boil down to my personal preference for a creamier ice cream and not to any “bad” aspects of Dippin’ Dots. Because Dippin’ Dots is true street food, this Cart presumes that it should be affirmed and the Cart cannot rebut the presumption. Therefore, the case is

AFFIRMED.

JEREMY, C.J., concurring.

My God, we agree.

Reporter’s Note: The concurring opinion was not included in the first publication and was added on October 24, 2012 due to the Chief Justice’s failure to meet the publication deadline. (Apparently it takes a long time to compose four words.)

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