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20 Catt. 4: In re Curbside Cupcakes Kiosk

2013 May 29

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., issued a separate opinion, concurring in the jurisdictional question.

Curbside Cupcakes (“CC”) bills itself as DC’s “first mobile cupcake truck.” Since it joined the mobile food scene in 2009, it has grown to three trucks and two indoor kiosks. While there is no question that CC’s trucks are in the Cart’s jurisdiction, it is less clear whether its kiosks are. The question before us today is whether the Cart may properly exercise jurisdiction and review the red velvet and carrot cake cupcakes from CC’s kiosk located in the food court at the Pentagon City Mall.

Curbside Cupcakes Kiosk at Pentagon City Mall

Curbside Cupcakes Kiosk at Pentagon City Mall


We first turn to our guiding legislation and rules. The Judiciary Act of 2011 (Cartiorari Act) grants the Supreme Cart “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments within those portions of the District of Columbia or the part thereof retroceded to the Commonwealth of Virginia.” Rule of Procedure 1-2 expands this to explain that the Cart’s jurisdiction “extends 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.”

From the Cartiorari Act and our own Rules of Procedures, we learn that the Cart’s jurisdictional test contains three elements. First, the establishment under consideration must be located in DC, Arlington, or Alexandria. Second, it must be a mobile gastronomic enterprise. Third, it must be reasonably proximate to public transportation of a reasonably rapid and efficient character.


We easily see that the first and third elements are satisfied in this case. CC’s kiosk is within the geographic jurisdiction of the Cart. The kiosk is located in the Pentagon City Mall, which is in Arlington. Thus, CC’s kiosk is “located in DC, Arlington, or Alexandria.” Moreover, CC’s kiosk is reasonably proximate to public transportation. The Pentagon City Mall is near the Pentagon City metro stop and is accessible by either the Blue or Yellow Lines.


The reviewability of the cupcakes from CC’s kiosk depends on whether the kiosk is a “mobile gastronomic enterprise.” By no stretch of the imagination or misinterpretation of our case law may CC’s kiosk qualify as a mobile gastronomic enterprise. In In re China Garden, 5 Catt. 1 (2012), we held that to be a mobile gastronomic enterprise, the enterprise selling the gastronomy had to be mobile. Here, it is clear that a stationary kiosk inside a shopping mall’s food cart is not mobile.

However, this finding does not end our analysis. Even if a gastronomic enterprise is not mobile, the Cart may exercise jurisdiction over it by virtue of its relationship with a mobile gastronomic enterprise that is within our jurisdiction. In In re Dippin’ Dots, 10 Catt. 5 (2012), we had jurisdiction over a pushcart that operated inside a building because it was affiliated with a food truck that was within our jurisdiction and vended the same ice cream product. In other words, the Cart’s jurisdiction extends to a gastronomic enterprise if (1) it is affiliated with a concurrently operating mobile gastronomic enterprise that is within our jurisdiction; and (2) it vends the same gastronomy as that mobile gastronomic enterprise.

CC’s kiosk meets both prongs. First, the kiosk is part of CC’s enterprise and is related to CC’s trucks, and, as stated before, CC’s trucks are mobile gastronomic enterprises within the Cart’s jurisdiction. This is because the trucks operate in DC and Arlington; are mobile and sell foodstuff in the form of cupcakes; and may be found near many metro stops in the area. Second, CC’s kiosk at Pentagon City Mall sells the same cupcakes as the food trucks. Indeed, they sell the same flavors on the same days. For example, on May 3, CC’s trucks and the kiosk offered the following flavors: red velvet, vanilla bean, black cupcake, carrot cake, vanilla mocha, peanut butter cup, tequila sunrise, and strawberry delight.

Today we hold that the Cart has jurisdiction over the red velvet and carrot cake cupcakes from CC’s stationary kiosk at the Pentagon City Mall because CC simultaneously operates food trucks within our jurisdiction and the kiosk vends the same cupcakes as the food trucks. To be clear, we hold only that our jurisdiction extends to the cupcakes under our consideration in this case. Our jurisdiction should not be interpreted to extend to CC’s cake truffles, which may be purchased from the kiosk but not the trucks. As the question of CC’s cake truffles are not before us today, we decline to decide that question and leave open the possibility that different menu items may be reviewed by this court.

Curbside Cupcakes Kiosk

Curbside Cupcakes Kiosk


Because we have jurisdiction over the red velvet and carrot cake cupcakes from CC’s kiosk at the Pentagon City Mall, we may properly review the cupcakes. Our regular reader knows that before we can address the merits of the cupcakes, we must first determine whether CC’s cupcakes are “street food.” Street food is the kind that “can be cooked in front of you and [is] meant to be eaten with your hands, without forks, while standing up.” In re Eat Wonky, 2 Catt. 5 (2011). If a dish qualifies as street food, we presume that it should be affirmed. If not, then the burden lies with the mobile gastronomic enterprise to prove the worth of the dish. See In re Big Cheese, 6 Catt. 2 (2012). Our case law makes clear that cupcakes are not street food, see, e.g., In re Sweetbites, 10 Catt. 1 (2012), so CC’s cupcakes are not entitled to the presumption of affirmance.

Carrot Cake and Red Velvet

Carrot Cake and Red Velvet

Even so, CC’s red velvet and carrot cake flavors were good. The red velvet cake was sufficiently rich with the right hint of cocoa powder. The carrot cake was pleasing texture-wise, as shredded carrots, chopped walnuts, and raisins were mixed into the soft cake. Each cupcake was topped with a generous amount of thick cream cheese frosting. The frosting was perfectly tangy instead of sweet. Now, my only complaint: while the cupcakes were moist, the exteriors were much too sticky. Perhaps the result of air-tight storage which trapped in moisture? I would have preferred a less sticky cupcake, but overall I enjoyed both cupcakes and, even at $3 per cupcake, would not object to having one of each again on a “I need a cupcake” kind of day.


The Cart’s jurisdiction extends to the red velvet and carrot cake cupcakes from CC’s kiosk at Pentagon City Mall because CC’s concurrently operating food trucks offer the same cupcakes. Thus, a review of the kiosk’s cupcakes is essentially a review of the food trucks’ cupcakes, and such a review serves the needs of our readers. CC’s red velvet and carrot cake cupcakes were tasty, moist, and topped off with a wonderfully tangy frosting. Unfortunately, they were too sticky, and for that reason the case is

AFFIRMED in part and REMANDED in part to Curbside Cupcakes for revision.

JEREMY, C.J., concurring in the jurisdictional question.

I concur in my sister’s application of this Cart’s jurisdictional test. I have long been of the opinion that this Cart’s jurisdiction extends to non-mobile gastronomic enterprises associated with mobile gastronomic enterprises. See, e.g., In re Pupatella, 8 Catt. 4 (2012).

I must recuse myself, however, from the question of the quality of CC’s wares. In In re Dangerously Delicious Pies, 4 Catt. 4 (2011), I wrote that, “given my severe aversion to cupcakeries,” I would recuse myself from the case of any “cupcake truck.” See also In re Sweetbites, 10 Catt. 1 (2012); In re Sinplicity, 9 Catt. 3 (2012). While the case before us is not one involving a cupcake truck, there is no principled distinction to be made between enterprises purveying primarily cupcakes–whether truck, cart, or brick-and-mortar.

The only possibility of not recusing myself would arise from adopting a more neutral opinion of cupcakeries, such that I may assess individual cupcakeries on their merits. However, on a lazy Sunday afternoon not so very long ago, a clerk and I decided to finally wait in the unnecessarily long line at Georgetown Cupcake. I left unimpressed, blinded by pink, and, frankly, vengeful. Clearly my “severe aversion” has not abated. Far from it. (For encouraging news, though, see here!) And so I do the only ethical thing and recuse myself from the substance of this case.

(N.B. I also hate shopping malls. Clearly I was not meant to adjudicate this case. Lest you think me a complete curmudgeon, I will remind you of my love of duck and poutine and pie.)

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