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23 Catt. 2: In re Captain Cookie & The Milkman at Thomas Foolery

2013 September 11

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., delivered a concurring opinion.

Captain Cookie & The Milkman is a DC-based food truck. Thomas Foolery is not. This brick and mortar hangout near Dupont Circle, however, serves Captain Cookie’s ice cream sandwiches. The question before the Supreme Cart is whether we have jurisdiction to review Captain Cookie’s ice cream sandwiches sold at Thomas Foolery.

I. Jurisdiction

The Judiciary Act of 2011 (Cartiorari Act) grants the Supreme Cart “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments.” Our Rule of Procedure 1-2 explains that this grant 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.”

It is clear that this court has jurisdiction to review ice cream sandwiches sold by Captain Cookie’s food truck. The food truck is a mobile bakery that sets up near several metro stops in the DC area. It is less clear whether we have jurisdiction to review Captain Cookie’s ice cream sandwiches served at Thomas Foolery, a brick and mortar establishment. Although the text of our guiding legislation seems to suggest that jurisdiction is lacking, our case law prevents such an incomplete and rushed conclusion.

This court has twice before granted jurisdiction to review foodstuffs from brick and mortar sellers. First, in In re Curbside Cupcakes Kiosk, 20 Catt. 4 (2013), we exercised jurisdiction over cupcakes sold at a stationary kiosk located in the food court of a shopping mall. The kiosk was affiliated with a food truck (Curbside Cupcakes) that was within the Cart’s jurisdiction, and it offered the same cupcakes as the food truck. Then, in SUNdeVICH v. SUNdeVICH, 22 Catt. 1 (2013), and its companion case, In re SUNdeVICH, 22 Catt. 2 (2013), we extended the Cart’s jurisdiction to review sandwiches from a brick and mortar restaurant because it concurrently operated a food truck, and it either offered the same sandwiches as the food truck or offered different sandwiches under the same branding as the food truck. These two cases show that “[e]ven 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.” SUNdeVICH, 22 Catt. 1.

However, the case before us is not like the brick and mortar establishments that we have reviewed in the past. The brick and mortars shared “sisterly” relationships with food trucks, as they were operated by a single entity as part of a united business model. Here, the nature of the relationship between the brick and mortar (Thomas Foolery) and the food truck (Captain Cookie) is different. They are separate business entities. By mutual agreement, Thomas Foolery includes on its menu ice cream sandwiches from Captain Cookie.

Because our legislation and case law provide little guidance, we look to the law of another high court in this land. We are ultimately persuaded by the Original Package Doctrine, announced by the U.S. Supreme Court in Maryland v. Brown, 25 U.S. (12 Wheat.)  419 (1827). In Brown, the Court found that a good that moved from one state to another state remained under federal control if the good was sold in its original package or form. Similarly, we hold that the Supreme Cart has jurisdiction over a food truck’s dish that moves to a distinct brick and mortar business if the dish is subsequently sold to the customer in the same package or form as intended by the food truck.

Here, Captain Cookie’s ice cream sandwiches move from its food truck to Thomas Foolery, a distinct brick and mortar business. Moreover, Thomas Foolery sells the ice cream sandwiches in the package or form intended by Captain Cookie. The customer can create the same custom ice cream sandwiches at Thomas Foolery as he or she can from Captain Cookie’s food truck. For the same price of $4, the customer chooses from the same selection of cookie and ice cream flavors. Thomas Foolery then combines the two cookies and ice cream scoop into a sandwich the same way that Captain Cookie does (i.e., cookie-ice cream-cookie). What is more, not only does Thomas Foolery serve sandwiches made from the same cookies and ice creams, but it makes clear that the ice cream sandwiches on its menu come from Captain Cookie. See Thomas Foolery’s website here and here. Because Thomas Foolery sells ice cream sandwiches in the form intended by Captain Cookie and packaged with Captain Cookie’s name, this court has authority to review Captain Cookie’s ice cream sandwiches sold at Thomas Foolery.

II. True Street Food

Before we review the merits of Captain Cookie’s ice cream sandwiches, we must pause to determine the standard of review appropriate in this case. If a dish before the Cart is “street food,” then we must affirm the dish absent a significant flaw. In re Big Cheese, 6 Catt. 2 (2012).

We have long defined street food as “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). We recognize that Oxford Dictionaries Online have very recently added “street food” to its digital pages, defining it as “prepared or cooked food sold by vendors in a street or other public location for immediate consumption.” Street Food, OXFORD DICTIONARIES ONLINE, (last visited August 28, 2013). However, we decline to amend our definition to follow ODO’s broader definition.

This Cart has already determined that ice cream is street food. See In re Sinplicity, 9 Catt. 3 (2012); In re Pleasant Pops, 21 Catt. 4 (2013). Sandwiches are also street food. See, e.g., A’ Lo Cubano, 22 Catt. 3 (2013), In re Borinquen Lunch Box, 10 Catt. 3 (2012); In re Hometown Heros, 14 Catt. 2 (2012); In re Kafta Mania, 17 Catt. 3 (2013); In re Lemongrass, 7 Catt. 1 (2012); In re Pepe, 13 Catt. 4 (2012); In re Red Hook Lobster Pound, 9 Catt. 1 (2012); In re Rolling Ficelle, 6 Catt. 3 (2012); In re Wassub, 13 Catt. 1 (2012); In re Willie’s Po’Boy, 7 Catt. 4 (2012). Ice cream sandwiches, then, must be street food too, and so Captain Cookie’s ice cream sandwiches at Thomas Foolery are entitled to the presumption of affirmance.

III. Captain Cookie’s Ice Cream Sandwiches

Custom ice cream sandwiches

Custom ice cream sandwiches

At Thomas Foolery, little and big kids alike can create their own ice cream sandwiches by picking two cookies and one ice cream flavor. The menu includes flavors that are always available, plus special cookie and ice cream flavors daily. Everyday cookie flavors include chocolate chip, snickerdoodle, Nutella, peanut butter, and ginger molasses. Everyday ice creams include chocolate, vanilla, and black cherry. We created two ice cream sandwiches. First, we opted for Nutella cookies with vanilla ice cream. Second, we chose ginger molasses cookies with maple bacon ice cream, the daily ice cream special.

The Nutella cookies, we are happy to say, tasted like Nutella. They were chocolatey but not overwhelmingly sweet. The center was soft and chewy, while the outside had a nice, crisp shell. The ginger molasses cookies were rich while not too gingery. A beautiful coating of granulated sugar gave a nice bite. The ginger molasses cookies, however, were not as soft and chewy in the middle.

While the cookies off Captain Cookie’s food truck are often served hot out of the on-board oven, the cookies sold at Thomas Foolery are understandably less likely to be as fresh and warm. It turns out that this is a good thing for ice cream sandwiches, as the ice cream would melt too quickly against warm cookies. For photographic evidence, see here and here. To the very last bite, our ice cream sandwiches held up.

Little needs to be said about the vanilla ice cream. It was nothing more and nothing less than what we expected from vanilla ice cream. The maple bacon ice cream, on the other hand, was a surprise. It was decadent. To our delight, the ice cream was not merely flavored with bacon; it was chock-full of bacon pieces.

Although the ice cream between our cookies did not melt into a drippy puddle, it still made for slightly messy eating. Biting down on the cookies made the ice cream squish out the sides. However, because this was the result of a very, very generously-sized scoop of ice cream placed between the cookies, an ice cream lover such as I cannot truly complain.

IV. Conclusion

We enjoyed Captain Cookie’s ice cream sandwiches at Thomas Foolery. Our reader should not wonder whether an ice cream sandwich should be had, but rather which cookies and which ice cream should be combined together first.


JEREMY, C.J., concurring.

I agree with my sister’s analysis of our case law. We undoubtedly have jurisdiction to consider a mobile gastronomic enterprise’s wares as openly purveyed by a separate brick and mortar. We may presume the offering is identical to that purveyed by the mobile gastronomic enterprise absent strong evidence to the contrary.

I agree also with my sister’s assessment of those of Captain Cookie’s ice cream sandwiches we had the opportunity to sample. I would note, however, that where my sister writes that “[b]iting down on the cookies made the ice cream squish out the sides,” she refers to her own experience. I, for one, am a rather dainty eater, with a touch as soft as a lace doily.

I would, however, go a step beyond my sister’s analysis. In my mind, we cannot grant jurisdiction to Captain Cookie through Thomas Foolery and yet ignore the question of Thomas Foolery itself. Thomas Foolery is housed in a basement on P Street, born out of the overwhelming donut smell of Zeke’s DC Donutz. It is nominally a bar, though its vibe is more like campus snack bars portrayed on shows like Boy Meets World and Saved By the Bell. That may be purposeful, as the entire place is centered around a campy nostalgia for the rough period 1985-1995. There are pogs to be played and Mario Kart to be won.

On the Sunday afternoon my sister and I visited Thomas Foolery, we were its only customers. Granted it was a Sunday afternoon, but, frankly, DC is a boozy enough town that we shouldn’t have been the only customers. That said, I did find that Thomas Foolery had one thing on the traditional food truck: a liquor license. Between the hours of 5:00pm and 7:00pm daily, there is an “Angry Hour,” in which $1 is deducted from the price of your libation if you order in an irate tone. (While I am not the world’s greatest thespian, I did find that a well placed swear word paired with an obscene IPA did the trick.) There are other rules too. (As a court of law, we tend to be enamored of rules.)

Other business took me back to Thomas Foolery the following Thursday. At that time, the space was teeming with patrons such that we had to wait for a table. For the price of my driver’s license, we played Cards Against Humanity while we imbibed and ate sandwiches from Big Cheese (verdict: better than the truck, but still mediocre and overpriced). Altogether a rather different experience than the previous Sunday. Time will tell whether the establishment will last, but it was, all in all, an entertaining evening and a lively venue.

And that, for what it’s worth, is Thomas Foolery.

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