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33 Catt. 1: In re Barbecue Cart at Heidelberg Pastry Shoppe

2014 October 8

Opinion of JUSTICE CATTLEYA, in chambers.

Heidelberg Pastry Shoppe (“Heidelberg”) is a German bakery and deli in Arlington, Virginia. On most days, one will encounter a very familiar scene there: display cases filled with cookies and cakes, customers looking for the take-a-number dispenser and waiting for their tickets to be called. The shop offers mainstays of any American bakery like black and white cookies and cold cut sandwiches, but its German roots come through at every turn—from its delicate marzipan treats, to open sandwiches with leberwurst, to imported grocery items like Mezzo Mix. What makes Heidelberg different is what it becomes on Saturdays during the summer and early fall.

Barbecue Cart at Heidelberg Pastry Shoppe

Barbecue Cart at Heidelberg Pastry Shoppe

On Saturdays from May to October, Heidelberg sets up a barbeque cart in front of its shop. The barbeque cart embraces the best of Germany, offering a menu of various grilled wurst (bratwurst, knackwurst, weisswurst, and more), plus sauerkraut, German potato salad, and pretzels. The issue before the Supreme Cart is whether the barbeque cart outside Heidelberg’s shop is within our jurisdiction and eligible for review.

A. Jurisdictional Requirements

Under the Judiciary Act of 2011 (Cartiorari Act), the Supreme Cart has “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments.” Rule of Procedure 1-2 explains 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.”

It is undisputed that Heidelberg is located in Arlington, Virginia. Heidelberg’s accessibility by public transportation is also not being challenged. Heidelberg is along Metrobus lines 3A and 3Y. Alternatively, it is a healthy 30 minute walk from the Ballston Metro. The determination of jurisdiction in this case depends on the outcome of one question: Is Heidelberg’s barbecue cart a “mobile gastronomic enterprise”? This single question raises two more questions. First, is Heidelberg’s barbecue cart an enterprise? Second, is the barbecue cart mobile?

1. Heidelberg’s Barbecue Cart Is an Enterprise

Heidelberg’s barbecue cart is not the first food cart considered by this Court. In In re China Garden, 5 Catt. 1 (2012), the Cart denied jurisdiction to a dim sum pushcart that operated inside a Chinese restaurant because the pushcart was not equipped to serve outside the walls of the restaurant. Consequently, the pushcart could not properly be considered an independent enterprise. Unlike China Garden, Heidelberg’s barbecue cart can – and in fact, does – serve outside the walls of Heidelberg’s shop. Also indicating that the barbecue cart is an enterprise on its own, customers can complete transactions with the barbecue cart without ever stepping inside Heidelberg’s shop. Customers do not place orders using the shop’s normal practice of issuing deli ticket numbers. Rather, customers merely get in line in front of the cart, just as customers get in line in front of a food truck. Moreover, the barbecue cart is equipped with its own payment system, so customer may pay the staff at the barbecue cart and need not interact with the cashiers inside Heidelberg’s shop. Because the barbecue cart serves customers completely, and separately from Heidelberg’s shop, it is an enterprise.

2. Heidelberg’s Barbecue Cart Is Mobile

Although Heidelberg’s barbecue cart is consistently located in the same spot in front of Heidelberg’s shop, the cart is very much mobile. It must move to that spot and, after lunch service, move away from that spot. The selection of the same spot every Saturday does not make the barbecue cart immobile and permanently affixed to the ground. Cf. In re Maine Avenue Fish Market, 11 Catt. 3 (2012) (denying jurisdiction to a barge that was permanently docked in the same spot). Consider also that a mobile food truck could choose to park in the same neighborhood, on the same street, in the same spot, and it would still qualify as a mobile gastronomic enterprise. Indeed, at least one food truck in the Cart’s jurisdiction does this. See In re El Chilango, 12 Catt. 2 (2012) (reviewing a food truck that parks along the same residential street in Rosslyn, Virginia). What is true for a food truck must be true for a food cart.

Since Heidelberg’s barbecue cart is a mobile gastronomic enterprise, as that term is interpreted by this Court, the barbecue cart is within our jurisdiction and may be reviewed.

B. Street Food

The Supreme Cart distinguishes between food that is “street” in nature and food that is not. “Street food” is defined 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). The Cart determines whether a dish is street food based on a “multifactor test,” including factors like whether the dish is traditionally considered to be street food. In re Hot People Food, 6 Catt. 4 (2012).

The Cart previously used a dish’s status as street food (or not as street food) to determine where the burden of proof in a case fell. Street food was given a presumption of affirmance, shifting the burden to the Cart to show that the dish was significantly flawed. Food held not to be “street” was given no presumption, and the dish had to stand on its own merits. This framework, however, led to inconsistent and unsatisfactory results. For example, street food dishes that the Justices did not wish to eat again were affirmed. So the Cart turned away from this framework. See In re Kohinoor Dhaba, 32 Catt. 1 (2014).

Although the Cart has moved away from the burden of proof framework of street food, whether a dish qualifies as street food is still crucial to the analysis by this Court. It has been suggested by at least one food truck owner that good mobile gastronomy is not related to whether a dish is street, but whether it is out of the ordinary and gourmet. In other words, not “normal.” The Cart agrees that mobile gastronomy can benefit from unusual menu offerings, but strongly disagrees that it must be “gourmet.” What is gourmet food? What is normal food? And why is normal food inferior to gourmet food? In this Cart’s view, there is only one kind of food that’s good, and that’s good food.

Serving something other than street food on the street ignores that the street vendor is offering not just an alternative choice in food, but an alternative choice in dining experience. The street eater typically eats while on the move, while sitting on the nearest park bench or building steps, while leaning against a ledge as a makeshift table. The experience is different from a sit-down meal at a full-service or fast-casual restaurant, different from carryout brought back to the office cafeteria or eaten at one’s desk. The food ought to embrace, not disregard, the environment in which it will be eaten, just like how a Frank Lloyd Wright house fits into the natural world around it.

Food truck fans in the area seem to agree that street vendors ought to serve street food. The DMV Food Truck Awards winner for Food Truck of the Year, Best New Food Truck, and Breakthrough Dish was Arepa Zone, a Venezulan food truck that serves sandwiches made with grilled corn patties. Arepas are not known for being gourmet. They are loved for their “simplicity and versatility” and are “popular go-to food.” They are eaten daily. They are—you guessed it—street food.

Bratwurst vendor in Berlin, Germany

Bratwurst vendor in Berlin, Germany

Although this Cart will no longer grant a presumption in favor of affirmance for street food, a dish’s status as street food will be factored positively in its review. This is especially true for dishes that are considered to be street food in their countries of origin, like arepas in Venezuela, crepes in France, panipuri from India, and, relevant to the present case, bratwurst in Germany. The endurance of such dishes over time—much longer than the food truck trend in the United States—is a sign that they are suited to the dining needs and wants of a street eater.

C. Heidelberg’s Bratwurst and Weisswurst

Having determined that the Supreme Cart may properly exercise jurisdiction over Heidelberg’s barbecue cart and that the sausages on the cart’s menu are street food, I can now turn to the merits of the barbecue cart’s offerings. To properly review a sausage, this Cart must give consideration to the (1) casing, (2) preparation, (3) texture, and (4) taste. See In re Tops American Food Company, 12 Catt. 1 (2012); In re PORC, 4 Catt. 1 (2011).

I ordered the bratwurst and weisswurst from the barbecue cart. A wurst on a roll with sauerkraut is $6.50. Heidelberg’s sausages are sourced from Baltimore-based Binkert’s, a family business that specializes in traditional German meat products.

Bratwurst on a roll with sauerkraut and mustard

Bratwurst on a roll with sauerkraut and mustard

Of the various sausages listed on the menu, the bratwurst, or brat, is probably known best to the American palate. Heidelberg’s version was made with pork. The casing on the bratwurst was excellent. The snap that my teeth achieved upon first bite exceeded all expectations. Moreover, no fault could be found with Heidelberg’s preparation of the brat. The sausage was grilled with care and expertise—it was not dry, it was not overcooked. The slightly coarse texture of the sausage made every bite feel satisfyingly meaty. The flavor was pleasant and agreeable. This was a sausage made for no one to dislike.

The weisswurst is a relatively new sausage for me. I was first introduced to the weisswurst only a few months ago while on a trip to Bavaria. Heidelberg’s version of the white sausage, made with veal, shared the same positives that the brat exhibited: a good snap, nice browning from the grill. The texture was finer than the brat though, and smoother too. I didn’t mind the textural change, as it made the sausage seem even juicier. The flavor of the veal sausage was also on the mild side, but this made the sausage the perfect vehicle to let one’s choice of mustard shine. (Heidelberg had spicy deli mustard on hand at the barbecue cart.)

Weisswurst and sauerkraut

Weisswurst and sauerkraut

I liked the weisswurst and saw no issue with its preparation. I’m told by my law clerk, however, that I should have objected to the grilled weisswurst. Weisswurst is traditionally prepared the way I first experienced it in Bavaria: boiled, not grilled, and served with a soft, and preferably large, pretzel. Not having been raised with this tradition, and being a devotee of a good snap in a sausage, the grill marks on the weisswurst were beautiful to me, not sacrilegious.


I was so impressed with the quality of the bratwurst and weisswurst from Heidelberg’s barbecue cart that I was unable to leave without purchasing a few packs of sausage to take home. Even on a grill pan on my electric cooktop at home, the sausages were spectacular. (A third type of sausage, the bauernwurst, meaning “farmer sausage,” was a surprise hit for me. The sausage—made with pork, beef, and whole mustard seeds—was smoky, spicy, and incredibly juicy.)

Heidelberg sells Binkert’s German sausages in its deli case all year long, but to get one off the grill from the outdoor barbecue cart, you only have one month left. Go.

AFFIRMED. It is so ordered.

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