So You Want to Operate an Ice Cream Truck?

Image by Image by Al alma from Pixabay.

Ahhh! The sounds of summer: the chirping of cicadas high up in the trees, the distant rumble of thunder as dark clouds begin to gather in the heat of day, the calliope-like tinkling of the bells of the ice cream truck as it meanders down the street, and the excited squeals of the children as they rush out to greet this rolling vendor of frozen goodness. How many of those kids dreamt of one day having their own ice cream truck and being able to eat ice cream all day long? Who wouldn’t? Unfortunately, it may not be as simple as all that. Here in Texas, as in other states, ice cream trucks are regulated, and operators must obtain the requisite permits to sell ice cream.

At the state level, mobile food units (MFUs) are governed by Chapter 437 of the Texas Health and Safety Code, and the Texas Department of State Health Service (the Department) is the entity through which MFUs are granted permits, except in certain instances mentioned in the statute. Under the Texas Administrative Code (TAC), an ice cream truck also can be classified as a roadside vendor because food is not prepared or processed by the vendor; the ice cream truck operator merely sells the ice cream. Nevertheless, under the TAC, the ice cream truck still is considered an MFU and therefore subject to the permitting requirements established by state law. In this regard, the Department has provided a checklist of requirements necessary to obtain approval for the operation of MFUs within its jurisdiction.

Tex. Health & Safety Code § 437.002 gives a county or public health district the authority to enforce state laws and rules concerning MFUs, but not the authority to adopt laws. In Harris County, persons wanting to operate an ice cream must obtain a permit from the Environmental Public Health Division (EPH) of Harris County Public Health. As part of the permitting process, the MFU must be brought to the EPH for a physical inspection by EPH staff and the Harris County Fire Marshal. Aside from the necessary documentation such as a valid Texas driver’s license and vehicle registration, there are certain equipment requirements that must be met as well as daily cleaning rules.

The City of Houston’s rules governing mobile food units can be found in Section 20-22 of the City of Houston Code of Ordinances. In Houston, an ice cream truck is classified as a restricted MFU, and as such, is the only MFU that can operate on city streets. It must have a CAUTION CHILDREN sign with warning lights and can only stop long enough to distribute the ice cream to interested customers. In addition, in accordance with Tex. Health & Safety Code § 437.0073 and Houston Ordinance § 20-22(c), all MFUs must first obtain a medallion to be able to operate within the city. Houston also requires the servicing of the mobile food unit within 24 hours period preceding operations.

You may wondering, however, about what brought on these ice cream truck musings. Today, August 14 just happens to be National Creamsicle Day, a celebration of that refreshing combination of vanilla ice cream covered in orange sherbet. Although the day has no real historical significance, it’s just fun to think about those things that brought us happiness as children and continue to bring us joy, especially as we melt away on these hot and humid days of August.

Send in the Clowns... For a Whole Week

We at the Harris County Law Library would be remiss if we failed to wish you a happy International Clown Week. People around the world spend the first week of August celebrating clowns. This most wonderful time of year has its roots right here in the United States of America, and is a fantastic example of citizen action turning a dream into a legal reality.

Though some debate surrounds its precise origins, American clowns began acknowledging August 1 through 7 as “Clown Week” at some point in the 1950s. In 1966, the then-President of Clown Club of America appointed Frank “Kelly the Clown” Kelly chairman of the organization’s Interational Clown Week initiative. Mr. Kelly encouraged membership to write to their legislators to request that National Clown Week become an official American holiday, and in 1969 a resolution was introduced through direct, targeted lobbying of Arkansas Senator John McClellan.

On October 8, 1970, Congress officially passed Public Law 91-442 requesting that the Executive Branch issue an offical proclamation that August 1 through 7 be adopted by the United States as National Clown Week in perpetuity. This dream became a reality on August 2, 1971, when President Richard Milhous Nixon officially proclaimed National Clown Week in Proclamation 4071. President Nixon would go on to resign three years later, almost to the precise day, on August 8, 1974. Perhaps he wanted to stick around for one more Clown Week.

Whatever Nixon’s motivations, this real American holiday was the result of patriotic clowns banding together to rally polticians to their cause at the highest levels. As we have written about before, despite their historic profession, clowns are not always covered by the legal protections one might expect. For example, with the status of their intellectual property unclear, clowns in the UK sought to protect their art through maintance of a registry known as “The Clown’s Gallery.”

Travel On Your Sofa

For millions of Americans, summer trips have become a thing of the non-COVID past. Even a day at the beach might be off-limits. International travel is even more of a pipedream, as currently only nine nations are open without restriction to US visitors.

Americans can work from home, shop from home, even go out on a date from home or adopt a pet over Zoom, so why not explore the world through the screen of a laptop?

GeoGuessr is a free, fun series of geography-based challenge games. Its basic premise is simple: you are dropped into a GoogleMaps StreetView, and then drop a pin on a conventional map at your best guess of the geographical location. Sounds simple, but it can be addictive, and you will become an expert on the differences between South African dirt roads and the Australian outback faster than you think.

From the comfort of your home, find yourself transported to Japanese fishing villages, and Scadinavian city squares. Check out GeoGuessr!

World Emoji Day

Photo: Pixabay

Welcome to World Emoji Day! July 17 is the day set aside to celebrate those little pictures that capture our feelings and render words unnecessary. Why July 17? That particular date is the one that appears on the calendar emoji and is also the date when Apple unveiled iCal for Mac at the MacWorld Expo back in 2002. Once limited to the technology realm, emoji have proliferated and have materialized practically everywhere. They appear on merchandise, such as tee shirts, hats, and backpacks and bakeware such as cookie stamps and cutters, candy molds, and cupcake baking pans and cups. When you are unsure of the meaning of a particular emoji or are looking for the right icon to convey your thoughts and feelings, you can consult the Emojipedia. And just when you thought that emoji could travel no farther, The Emoji Movie was released in 2017 with a sequel coming right around the corner.

Photo: OpenMoji

Emoji have even made an appearance in the courts. Back in 2018, we reported that, in an historic first, the Seventh Circuit Court of Appeals included in its published opinion a poop emoji that had been submitted as evidence in an employment discrimination case. But what are some of the legal issues that might arise involving emoji? The two primary categories appear to be misunderstandings that require judicial interpretation and intervention and the protection afforded emoji under intellectual property laws. One emoji may have multiple meanings or a meaning that is not readily apparent or may depict images that are specific to particular culture, thus forcing parties to rely upon the courts to determine their meaning. Cases that required judicial interpretation of emoji ranged from whether the use of a emoticon with the tongue sticking out meant that the prior statement was a joke or a prank [(See Elonis v. U.S., 135 S. Ct. 2001 (2015)], whether the use of a thumbs-up emoji demonstrated acquiescence to a custody arrangement [(See Nunez Bardales v. Lamothe, 459 F. Supp. 3d 459 (M.D. Tenn, 2019)], whether a smiley face in a death threat transformed the message into a joke (See In re L.F., 2015 WL 3500616), whether the use of a smiling emoji in connection with a teen’s text message that she wanted to kill her mother constituted harassment (See State v. D.R.C., 2020 WL 3968198), and whether communications between employees could be interpreted as harassment or discrimination in the workplace [(See Murdoch v. Medjet Assistance, LLC, 294 F. Supp. 3d 1242 (N.D. Ala., 2018)]. In addition to the types of cases just mentioned, emoji can play an important role in cases addressing claims of or challenges to free speech. Many of these First Amendment cases involve an analysis of whether, taken within context, the speech at issue constitutes a true threat, therefore forfeiting its First Amendment protection.

The second category of legal issues facing emoji concerns the role intellectual property plays in these misunderstandings of interpretation. Because there is copyright and trademark protection afforded individual emoji and emoji sets, the resulting depiction variations and lack of standardization leads to confusion and misconception. Unicode, an organization attempting to standardize emoji, only standardizes the codes, not the depictions, thus leading to more diversity and an increased possibility of greater misunderstandings in interpretation. Additionally, some emoji are not Unicode-coded emoji, thus leading to more occasions for variation.

There are so many excellent articles devoted to this newly emerging topic. For further reading about emojis and the roles they are playing in the law today, check out some of these articles:

Jonathan Geneus, Emoji: The Caricatured Lawsuit, 16 Colo. Tech. L.J. 431 (2018)

Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227 (2018)

Stephen Harrison, How Emojis Have Invaded the Courtroom , Slate, (November 26, 2019)

Erin Janssen, Hearsay in the Smiley Face: Analyzing the Use of Emojis as Evidence, 49 St. Mary’s L.J. 699 (2018)

Patrick M. Milott, :-P Emojis and Emoticons in Court, 44 Reporter 61 (2017)

Elie Mystal, Is Emoji Law Going to Be a Thing? , Above the Law, (February 25, 2019)

National Don't Step on a Bee Day

Today, July 10, is National Don’t Step on a Bee Day, a day to promote awareness of the small, yet precious bee and its importance to the ecosystem. According to the United States Geologic Survey, the science agency for the Department of the Interior, of the 20,000 bees known worldwide, about 4,000 are native to the United States. (Sadly, the honeybee is not one of them.) These native bees are responsible for the pollination of approximately 75% of the fruits, vegetables, and nuts grown in the United States. Despite the importance of bees to the ecosystem, there are a lack of federal rules and regulations protecting these small creatures. The Honeybee Act, 7 U.S.C. §§ 281 - 286, governs the importation of honeybees. Its goal is “to prevent the introduction and spread of diseases and parasites that are harmful to the bee population, the introduction of genetically undesirable germ plasm of honeybees, or the introduction and spread of undesirable species of subspecies of honeybees and the semen of honeybees.” Violations can result in a fine, imprisonment, or both.

Despite the relative lack of laws and regulations protecting the bee, the U.S. Environmental Protection Agency (EPA) has taken steps to safeguard bees and other pollinators. In January 2020, the EPA released proposed interim decisions for certain chemical insecticides. Additional steps taken by the EPA include: implementing a policy protecting bees from agricultural pesticide spray and dust application while bees are under contract to provide pollination services, prohibiting the use of certain chemicals when bees are present, issuing guidance for assessing the risks and effects a proposed pesticide may have on bees, and developing a Pollinator Protection Initiative.

On the state level, the Texas Apiary Inspection Service (TAIS) is the agency tasked with safeguarding the apiary industry of Texas. The TAIS operates under the authority of Chapter 131 of the Texas Agriculture Code. Under the Texas Agriculture Code, the Director of the Texas Agricultural Experiment Station shall appoint a qualified entomologist to serve as chief apiary inspector. Tex. Agric. Code § 131.021 delineates the powers and duties of the inspector. Such powers include adopting rules to control, eradicate, or prevent the spread or dissemination of contagious diseases and seizing and ordering the destruction, treatment, or sale of products equipment that is determined to be diseased. The inspector also has the authority under Tex. Agric. Code § 131.022 to declare a quarantine should the need arise. The movement of bees (other than using their own wings) is also regulated by the chief apiary inspector. Permits for importation and intrastate shipment are required. However, the statute does not specify a similar requirement for exportation. Nevertheless, persons exporting bees may apply for a permit from the inspector.

Additional regulations governing bees can be found in Chapter 71 of the Texas Administrative Code. There, you will find rules regarding European honey bee certification, apiary quarantine, and complaints concerning the disease status of an apiary.

On this National Don’t Step on a Bee Day, please protect these little pollinators. Doing so helps our flowers flourish and our gardens grow. To learn more about native Texas bees, check out this article from the Native Plant Society of Texas.