On August 7, Michael Hernandez was fed up. That morning, the pitmaster glanced through the window as two inspectors from the Texas Department of Agriculture pulled up to his restaurant, Hays Co. Bar-B-Que, in San Marcos. It was about an hour before the business’s 11 a.m. opening time, and Hernandez was in a meeting. The inspectors walked in the unlocked front door to inspect the scales he uses to weigh his barbecue, he says. Hernandez cut his meeting short and found them in his kitchen. His temper flared. “Get out of my establishment,” he told them. According to Hernandez, the inspectors looked at each other, and then went back to their truck. He says they then returned with a written warning for Hernandez about delinquency on his renewal fee, and told him they were just the messengers. “Here’s my message: tell Sid that I ain’t paying a damn thing,” he said.
Hernandez was referring to state agriculture commissioner Sid Miller, who has proven himself to be obsessed with the scales inside barbecue joints. The Texas Department of Agriculture had ramped up inspections on barbecue joint scales as part of Operation Maverick back in 2015, but they were removed from the department’s purview after the Barbecue Bill went into effect in September 2017—or so everyone outside of TDA thought. However, even after being repeatedly told the service is no longer required, Miller says his duty to protect the barbecue consumer won’t allow him let to go of barbecue scale enforcement.
The problem comes down to two words: “on premises.” After the legislature two years ago overwhelming passed the Barbecue Bill, which was designed to exempt barbecue joints, yogurt shops, and other establishments weighing food for immediate consumption from inspection, Section 13.1002 was added to the Agriculture Code. It reads: “Notwithstanding any other law, a commercial weighing or measuring device that is exclusively used to weigh food sold for immediate consumption is exempt” from the need for registration fees and inspections from the TDA. Implementing that directive from the legislature was the responsibility of TDA, which left Section 13.1002 alone but added new definitions for “immediate consumption” elsewhere in the Agriculture Code. One definition reads that an exempted scale is “a scale exclusively used to weigh food sold for immediate consumption on premises.”
In other words, the TDA was telling barbecue joint owners that if they sold any barbecue to go, they still had to pay their yearly registrations of $35 per scale and be subject to random inspections. The Texas Restaurant Association, which had supported the Barbecue Bill, cried foul, along with 45 Texas legislators who signed a letter to Miller urging him to change the new rule to align with the intent of the legislature. In response, Miller sought clarification on the rule’s wording from Texas’s attorney general, Ken Paxton. Miller received a response from Paxton in April:
The language of the statute [as written by TDA] requires that the vendor sell food that a consumer can eat immediately, but it does not mandate where or when the purchaser will eat that food. Nor does it require that the seller provide a space for the consumer to eat. On the other hand, the Department’s rules require actual consumption of the food on the premises, placing additional conditions on the buyer and seller in order for a device to be exempt from Department regulation.
In Paxton’s non-binding opinion, Miller’s interpretation was an overreach. Pitmasters, including Hernandez, were relieved. He admits he received a registration renewal letter for his scales from TDA a few months before the surprise inspection, but mistakenly thought that Paxton’s directive meant the issue was over. He was wrong.
“Nothing has changed,” TDA spokesman Mark Loeffler wrote in late June in response to Paxton’s directive. “The Attorney General’s letter is non-binding but has been thoroughly reviewed. Our inspectors will continue to do the work they do every day to protect consumers as outlined in TDA rules.” Miller requested the letter from Paxton—and when it didn’t offer the opinion he hoped for, his department ignored it.
I don’t vote for Republicans to increase taxes and regulation, especially in defiance of legislative intent.
I’ve written Mr. Loeffler to see if anything has changed [Edited to add: See comments below], or if the Texas Department of Agriculture still requires barbecue joint owners to pay yearly registrations of $35 per scale and be subject to random inspections, despite the express wishes of the Texas legislature and the opinion of Texas Attorney General Ken Paxton.
Don’t mess with Texas BBQ joints…
(Hat tip: Ace of Spades HQ.)