I granted cartiorari to BBQ Bus (“BBQB”).

I. PETITION FOR CARTIORARI

A petition for cartiorari was submitted by Julia pursuant to Rule of Procedure 2-3(a). The petition asks whether “a food cart catering experience [can] be as amazing as a street-side food cart experience.” In support of the petition, Julia contends the following:

1. The question presented is of exceptional importance: the BBQ Bus catered our wedding and no one could shut up about how awesome the food was. Some were heard to express that the overall experience of having a food cart cater a bumpin’ party was even better than eating in the park at lunchtime on a sunny day. In the alternative, the experience was at least equal to eating in the park at lunchtime on a sunny day.

2. The BBQ Bus is clearly a superior vehicle [N.B. pun noted and appreciated] for addressing the question presented. It is, after all, bright yellow like a school bus, but with flames.

The petition presumes “the High Cart” should accept for review the BBQ Bus, particularly the pulled pork BBQ sandwich, the potato salad, and the corn salad, and, by relying on record evidence and testimony from the wedding of Brad & Julia, compare the overall experience to that of eating the same food in the park at lunchtime on a sunny day.

The petition, in essence, asks this Cart to determine (a) whether a wedding food cart experience is preferable  to—or, in the alternative, equal to—a lunchtime, park-based food cart experience; and (b) the merits of BBQ Bus in particular.

While we must deny the petition for cartiorari (Rule of Procedure 2-3(b)) for the reasons given below, we ultimately take this opportunity to grant cartiorari sua sponte pursuant to Rule of Procedure 2-2.

A. Question 1: Wedding Reception Food Truck v. Park at Lunchtime Food Truck

As a preliminary matter, the Cart must deny the petitioner’s first question as it is presented, that is, whether “the overall experience of having a food cart cater a bumpin’ party [is] even better than eating in the park at lunchtime on a sunny day,” or, in the alternative, whether it is an experience of equivalent worth.

A food truck wedding reception is a novel and intriguing idea. Apparently, it is also a growing trend. See, e.g., here and here and here. It seems to have been a hit at Brad and Julia’s wedding, and we applaud the success and foresight of their avant garde sensibilities. (We of the Supreme Cart of course also congratulate Brad and Julia on their wedding and wish them all the best in their life together!)

However this Cart, like other courts of federal jurisdiction, is limited by the first clause of section 2 of Article III of the United States Constitution, which restricts “the judicial Power” to “cases” and “controversies.” U.S CONST. art. III, § 2. In particular, a federal court is forbidden from issuing a mere advisory opinion in an instance in which there is no actual controversy. Muskrat v. United States, 219 U.S. 346 (1911). The first question asks only whether a non-lunchtime food truck experience is better than or equal to a lunchtime food truck experience. The breadth of this question exceeds the institutional capacity and democratic purpose of this Cart. Because it is not limited to a single food truck, or a controversy between multiple specific food trucks, it must be dismissed as a request for an advisory opinion.

B. Question 2: BBQ Bus in the Context of Question 1

The second question specifies that BBQB is a “superior vehicle” for addressing the first question. While this question is sufficiently specific, it, too, must be dismissed given an insufficient record.

The petitioner invites this Cart to “rely[] on record evidence and testimony from the wedding of Brad & Julia” to compare the wedding reception food truck experience to a more standard lunchtime food truck experience. This we cannot do.

As a federal court established by Congress, we are bound by the Federal Rules of Evidence. Under those rules, hearsay is not admissible unless otherwise provided by a federal statute, the rules of evidence themselves, or other rules prescribed by the Supreme Court. FED. R. EVID. 802. “Hearsay” is defined to mean “a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” FED. R. EVID. 801.

The statements at issue here—that “no one could shut up about how awesome the food was” and that “[s]ome were heard to express that the overall experience of having a food cart cater a bumpin’ party was even better than eating in the park at lunchtime on a sunny day”—clearly satisfy both prongs of the definition of hearsay. As for the former, the statements were made at the wedding described, not “while testifying at the current trial or hearing.” As for the latter, the statements are clearly offered to prove the truth of the matter asserted, not, for example, to show constructive knowledge. Finally, we find no federal statute, other rule of evidence, or other rule prescribed by the Supreme Court which would allow us to admit these statements into the record. Accordingly, because there is no record on which to assess the relative worth of the wedding reception food truck experience, we must deny cartiorari with regard to the petitioner’s second question.

(As an aside, had the Justices of this Cart been invited to Brad and Julia’s wedding, the outcome may have been different. But we’re not bitter. Not at all. Besides, there are issues of proper judicial conduct to consider.)

Therefore, because neither question of the petitioner presents  a proper basis for granting cartiorari, we must deny the petition under Rule of Procedure 2-3(b).

II. GRANT OF CARTIORARI

Nevertheless, we take this opportunity to nevertheless grant cartiorari under the procedure prescribed by Rule of Procedure 2-2. We grant cartiorari to consider the BBQ Bus Sampler, a platter composed of “smoky pulled pork,” “spiced chicken,” “sliced brisket,” “BBQ bus beans,” “crispy slaw,” and a “buttermilk cornmeal biscuit.”

While we cannot grant cartiorari based on the petition of Julia, Rule of Procedure 2-6 provides that “would-be commenters, who feel some urge to opine on any aspect of any proceeding may do so as an amicus (or amica) curiae by so commenting on the relevant grant of cartiorari or grant of reconsideration.” While the petition of Julia, phrased as a petition under Rule 2-3, does not comply with the specific amicus requirements of Rule 2-6, it would offend justice to give no consideration to the arguments presented. Therefore, we hold that a petition for cartiorari submitted under Rule 2-3 that is denied under Rule 2-3(b) may serve as a constructive amicus brief under Rule of Procedure 2-6, subject to consideration by the Supreme Cart upon grant of cartiorari. The text of the petition of Julia was considered in the adjudication of this case.

BBQ Bus By Night

III. HOURS

Before proceeding to the question of BBQB’s food, I must pause a moment on the enterprise’s hours. Argument took place in the evening hours on an otherwise quiet, leafy, residential stretch of Calvert Street Northwest. BBQB must be applauded for its “dinner” and “late-night” hours. We have previously  touched on the merits of food trucks open outside of lunch hours. See, e.g., In re Choupi, 18 Catt. 2 (2013) (on the question of breakfast). Other metropolises feature vibrant evening street food scenes, for example the famous night markets of Taiwan. The closest we have, perhaps, is Truckeroo, but that is a monthly, somewhat artificial event arguably divorced from surrounding street life. Perhaps BBQB signals a move toward an around-the-clock street food culture. That is to be applauded. On that point alone, I must affirm BBQ, at least in part.

IV. FOOD

A. “Street Food”

I must first ask whether BBQB’s cuisine is properly “street food.” If it is, the jurisprudence of this Cart requires that it be affirmed absent some other grievous error. See In re Big Cheese, 6 Catt. 2 (2012). If it is not, the food truck must prove the worth of its creations. See id. Case law defines “street food” to be that which “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). While this test should not be taken to define the scope of “street food,” it provides a useful starting point. See In re DC Ballers, 19 Catt. 1 (2013) (quoting In re Hot People Food, 6 Catt. 4 (2012)). The bulk of the container containing my meal verifies that it was not meant to be eaten by hand, without forks, or while standing up. Therefore, it cannot meet the strict requirements of the Eat Wonky inquiry. I find no other historical or cultural reasons to find BBQB’s platter to constitute “street food.” It is really nothing more than streetside carry-out. Therefore, the BBQ Bus Sampler must stand entirely on its own inherent worth.

B. The Food Itself

Smoky Pulled Pork. I have written previously of a certain, not entirely fruitful relationship with pulled pork. See In re El Floridano, 2 Catt. 2 (2011); In re DC Empanadas, 1 Catt. 3 (2011). While I have no strong dislike for pulled pork, I tend to find that there are more delectable preparations of pork in barbecue’s repertoire. I say this only to provide honesty in my opinion and to avoid needless claims of hidden bias. See El Floridano, 2 Catt. 2 (affirming a pulled pork sandwich). In the interests of justice, I sampled BBQB’s smoky pulled pork. As far as pulled pork goes, BBQB’s was decent. While not the best I’ve had, even in the DC street food scene, it was good, better even than pulled pork I’ve sampled in more southerly regions of the country. The pork was nicely smoky, as promised, moist, and not shredded into oblivion. A bit of hot sauce, while not necessary, proved helpful.

Spiced Chicken. My clerk and I agree that, of the three meats sampled, the spiced chicken was, surprisingly, the best. It was tender, juicy, and flavorful, quite flavorful in fact, in almost a jerk manner.

Sliced Brisket. Normally fans of barbecue brisket, my clerk and I found BBQB’s sliced brisket the least successful of the three meats sampled. It was somewhat tough and somewhat bland. While not bad, it was not exciting, inspired, or extraordinarily well-executed.  It ranked somewhere slightly below mediocre.

BBQ Bus Beans. BBQB’s beans were average, which is really all I can say about them. BBQB contends they are “[p]acked with more sweet & spicy flavor than you thought could fit in a bean,” though I’m afraid I’ve encountered beans packed with significantly more of both.

Crispy Slaw. BBQB’s slaw is more aptly described as “crisp” than “crispy.” It is composed of “[s]hredded red & green cabbage & carrots tossed in [BBQB’s] house vinaigrette.” My grandfather used to say you could judge the quality of a restaurant by the quality of its coleslaw. Judging by this standard, BBQB is somewhat uninteresting. Luckily for BBQB, this aphorism has never been adopted as a legal standard by this Cart.

Buttermilk Cornmeal Biscuit. I enjoy cornbread, and I enjoy buttermilk biscuits. I do not think I enjoy buttermilk cornmeal biscuits. The cornmeal takes away from the velvety butteriness of the biscuit. The biscuit preparation detracts from the corny grittiness of cornbread. It is not the happiest of mediums.

VI. CONCLUSION

I would enthusiastically affirm the spiced chicken and otherwise affirm the smoky pulled pork, BBQB Bus Beans, and crispy slaw. I would remand the sliced brisket and buttermilk cornmeal biscuit to BBQB for revision. For these reasons, the case is

AFFIRMED in part and REMANDED in part to BBQ Bus for revision. It is so ordered.

an ordinance to amend, reenact and recodify Chapter 30 (Peddlers, Vendors and Canvassers) of the Arlington County Code, specifically Sections 30-2.1, 30-8, 30-9 and 30-10, to refine the language for exemptions; extend the permitted time for on-street vending from sixty (60) minutes to the lesser of two (2) hours or the lawful time limit prescribed for the respective parking meter zone; explain the regulation of the permitted time; and allow the County Manager greater flexibility in establishing On-Street Vending Zones.

The hearing is scheduled for April 20, 2013, in Room 307, at 2100 Clarendon Blvd. at 9:00 A.M. Click here for more information on the hearing.

For articles regarding the proposed regulations, see:

• Tim Carmen, Arlington looks to expand vending hours for food trucks, Washington Post, March 12, 2013.
• Rachel Hatzipanagos, Why New Laws May Turn Arlington into a Food Truck Haven, Clarendon-Courthouse-Rosslyn Patch, April 8, 2013.
• Martin Austermuhle, With More Flexible Regulations, Arlington Could Steal Away D.C.’s Food Trucks, DCist, April 8, 2013.

For more on the DC food truck regulations, see Parts 1-3 here and here and here.

Today, Doug Povich, Chairman of the Food Truck Association of Metropolitan Washington and Co-Owner of Red Hook Lobster Pound sent out the following email regarding the most recent efforts to regulate the food truck scene:

I am a proud fifth-generation Washingtonian. In the early 1960’s my grandfather was appointed by President Kennedy to be President of the Board of Commissioners of Washington, DC, which governed the city before we had mayors. My grandfather’s vision for the city was based on opportunities for all people to succeed and for innovation to thrive.

Two years ago, I started the Red Hook Lobster Pound because I wanted to be a part of the new food truck scene here and to bring a taste of Maine to DC. I was intrigued by a business model that allowed a relatively low cost entry into the food services industry and was excited to see the smiles on the faces of our loyal customers.

Today, my food truck is being pushed towards extinction. Mayor Gray’s proposed regulations would base my business’ success and failure on the luck of winning a lottery rather than on the quality of our food.

The Food Truck Association needs your help to defeat these regulations. Will you join the Save DC Food Trucks campaign and stand up to these unfair regulations?

Mayor Gray’s proposed regulations will reduce your lunch choices and make it difficult for your favorite food trucks to stay in business. The lottery system could even push your favorite food trucks out of the most popular downtown areas for months on end.

Mayor Gray’s ill-conceived regulations will squash opportunities for small business owners like myself, a far cry from the vision that my grandfather had for this city.

We need a city that supports food trucks. We need your help to save the food trucks in DC, because without our collective voice, the Mayor’s regulations will pass and many of the trucks you know and love will be pushed out of DC.

Join our campaign to today:

http://savedcfoodtrucks.org

Thanks,

Doug Povich

Chairman, Food Truck Association of Metropolitan Washington
Co-Owner, Red Hook Lobster Pound

For articles regarding the proposed regulations, see:

• Washington City Paper: here and here.
• Washington Post: here and here.

• “DC Food Truck Owners Fear Proposed Rules Could Send Them Fleeing,” November 9, 2012.
• “Regs Would Limit Food Trucks in Downtown DC,” November 8, 2012.

Here are various links, press, and opinions:

• D.C. Food Truck Association
• Stand With D.C. Food Trucks
• Food Truck Fiesta
• Hey DC Gov: Pass New Food Truck Regs Now! (change.org)
• WaPo Summary of Comments Already Submitted
• Bert Gall & Robert Frommer (Institute of Justice), Danger Zone for D.C.’s Food Trucks, Washington Post, Feb. 10, 2012
• José Andrés on Food Trucks, Eater DC, January 30, 2012
• Matthew Yglesias, Get Your Kitchen Out of My Parking Space!, Slate, Feb. 22, 2012
• Chris Shott, For Food Trucks, Any New Rules are Good Rules, Washington City Paper, January 20, 2012
• Ché Ruddell-Tabisola, Proposed Rules a Good Start, But Some Could Threaten D.C. Food Trucks, Washington Blade, February 15, 2012

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That the Supreme Cart of the United States shall consist of at least two Justices, one of whom shall serve as Reporter of Decisions, and shall hold session biweekly at the seat of government, or in that portion formerly thereof retroceded to the Commonwealth of Virginia by Act of this Congress assembled in the year of our Lord 1847.

SECTION 2. And be it further enacted, That the Supreme Cart shall have 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 by Act of this Congress assembled in the year of our Lord 1847.

SECTION 3. And be it further enacted, That the Supreme Cart is hereby charged with the formulation of rules that shall govern its procedure, which, before taking effect, shall be certified and transmitted forthwith to the Congress for a vote thereon.

SECTION 4. And be it further enacted, That the Justices of the Supreme Cart, before they proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: “I, A. B., do solemnly swear or affirm, that I will administer justice without respect to carts or trucks, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States, and the rules governing the Supreme Cart. So help me God.”

APPROVED, August 26, 2011.