When is Taco a Sandwich?
It depends.
A seemingly silly story from earlier in the week is making the rounds.
UPI (“Indiana judge rules tacos are ‘Mexican-style sandwiches’“):
An Indiana judge resolved a legal dispute surrounding a Fort Wayne strip mall by ruling that tacos and burritos “are Mexican-style sandwiches.”
Martin Quintana, the developer behind the new Quintana Plaza strip mall on Jefferson Boulevard in Fort Wayne, entered into a written agreement with the Covington Creek Condominium Association that was intended to keep fast food restaurants from opening in the block of stores.
The agreement allowed for the opening of “made-to-order” sandwich restaurants, with Subway and Jimmy John’s listed as examples, but barred “traditional fast food restaurants such as McDonald’s, Arby’s and Wendy’s.”
The agreement also prohibited any allowed restaurants from offering outdoor seating, drive-through service or alcoholic beverages.
Quintana struck a deal in 2022 to open a location of locally-owned eatery The Famous Taco in the strip mall, and the condo association approved an amendment to allow the restaurant, but the Allen County Plan Commission rejected the amendment, citing the earlier written agreement.
The dispute was brought before Allen Superior Judge Craig J. Bobay, who ruled that the opening of the Mexican restaurant would not require the original agreement to be amended at all.
Bobay wrote: “The proposed Famous Taco restaurant would serve made-to-order tacos, burritos and other Mexican-style food, and would not have outdoor seating, drive through service or serve alcohol. The Court agrees with Quintana that tacos and burritos are Mexican style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches.”
Bobay said the original agreement would also apply to made-to-order restaurants offering Greek gyros, Indian naan wraps or Vietnamese Banh mi.
WaPo (“Are tacos and burritos sandwiches? A judge in Indiana ruled yes.“) adds:
A spokesperson for the Allen County Superior Court said Bobay does not comment on cases on his docket. But his ruling brought “the most food-related feedback” to the court, spokesperson John McGauley said. It also probably marked, McGauley added, the first time a ruling from the court had “shown up on Barstool Sports.”
The Indiana court is not the first to consider the legality of a food’s categorization.
- Contrary to Bobay, a Massachusetts judge in 2006 ruled that tacos, burritos and quesadillas were not sandwiches. In that case, Panera Bread sued White City, Mass., for allowing Qdoba to lease space at a shopping center, alleging that the city had violated an exclusivity clause preventing leases with other businesses “that primarily sell sandwiches.” Judge Jeffrey Locke wrote that the agreement did not explicitly define sandwiches, adding that tacos, burritos and quesadillas are not commonly understood to be sandwiches.
- In March 2023, a federal court ruled that American cheesemakers can label their product “Gruyère,” even if it is not made near the French-Swiss border, where the rich cheese originated.
- An Illinois court is considering whether Buffalo Wild Wings falsely advertises its “boneless wings.” Last year, a Chicago resident sued the company, alleging that the wings he had bought were actually chicken breast.
- Even Supreme Court justices have been asked to weigh in on food debates. During a 2018 appearance on “The Late Show with Stephen Colbert,” the comedian asked Justice Ruth Bader Ginsburg to decide whether hot dogs were considered sandwiches. She said they were.
In 2005, the Department of Agriculture published its own view on the sandwich debate with its Food Standards and Labeling Policy Book. The book stipulates that a burrito is a “Mexican style sandwich-like product.”
Another theory that led to much online debate is the Cube Rule, which categorizes food based on the location of the starch. Using the Cube Rule, a burrito is a calzone, or a dish fully enclosed in starch, and a taco is just that — a taco, or a product with starch on the bottom and two opposing sides.
A hot dog is also considered a taco under the Cube Rule.
Fort Wayne’s own food fight dates back to 2022, when resident Martin Quintana, the developer of the shopping center property, wanted to allow the Famous Taco restaurant to open there, but a nearby condominium association raised concerns that the business violated the property’s zoning policy.
Discussions with Fort Wayne’s Plan Commission about whether to allow Famous Taco to open under an amendment to the original zoning policy followed. The policy did not allow fast-food restaurants such as Wendy’s and McDonald’s, but made an exception for sandwich businesses, citing examples including Subway and Jimmy John’s. Restaurants under the exception could not have outdoor seating, drive-through service, alcohol sales or outdoor speakers.
At an October 2022 meeting, Quintana told the Plan Commission that the disagreement over Famous Taco had “kind of became an argument of … is a taco a sandwich or not.”
Ultimately, the commission did not approve the amendment, denying approval for Famous Taco — a decision Quintana asked the court to review in December 2022.
In his decision this week, Bobay ruled that Famous Taco “is permissible under the terms of the original” policy and could classify as a restaurant serving “made-to-order” or Subway-style sandwiches.
With that, at least for now, the judge seems to have wrapped up the sandwich beef in Fort Wayne.
“No amendment was necessary,” Bobay wrote.
While the debate as to whether tacos, hot dogs, and the like meet the definition of “sandwich” is mildly amusing, like most questions of this type the correct answer is “It depends.” And I think Bobay got it wrong here.
In the above-linked case regarding Panera Bread’s exclusive contract to sell sandwiches in a specific strip mall, it seems obvious to me that a Mexican-style restaurant is not a direct competitor and the ruling was therefore correct. In this case, though, whether the exemption that kept out “fast food restaurants” but allowed establishments serving “sandwiches” applied to a taco joint really depends on the intent of the original restriction. And it seems obvious to me that the strip mall and condo association, and not a judge, should have made that call.
Rather clearly, a McDonald’s hamburger and an Arby’s roast beef sandwich are sandwiches. They’re more obviously sandwiches than a taco or Bahn mi. So, why were they explicitly banned but Subway and Jimmy John’s exempted?
Alas, I was unable to find the answer to that question. Left to speculate, though, the former primarily serves hot food, whereas the latter serves cold food almost exclusively (with the few hot items typically pre-cooked and reheated in a microwave). So, my guess is that the condo association was worried about odors emanating from the restaurants. In which case, tacos, gyros, and Bahn mi are much more like McDonald’s and Arby’s than Subway or Jimmy John’s.
There’s already a Mexican style sandwich, and it’s called a torta.
If they allow Subway it’s pretty clear the one thing they arent concerned about is the quality of the food.
Steve
I believe the answer to your question is right there in the adjective used in the agreement:
“Sandwich” is less relevant than “made-to-order” and combined with the other restrictions from the condo association – no outdoor seating, drive-through service or alcoholic beverages – traffic and spill-over noise would seem the more evident concerns of the neighbors than where the starch is on the food.
Still amusing to see what people can get worked up about when it comes to forcing things into categories.
@steve:
Subway is an abomination.
@Scott F.: Yes, the relevant distinction seems to have been “made-to-order” more than “sandwich”. In fact, the story as quoted, and I don’t care enough to follow the link, leaves me a bit confused. The agreement allows only made-to-order sandwiches. Are non-sandwich places allowed? Say a strip mall Chinese place? If so, then wouldn’t a taco is not a sandwich have led to the same place as it’s a made-to-order sandwich? It looks like the problem is wanting to ban McDonalds et al, but having difficulty writing legal language to do so.
But to restore the gray area and keep the lawyers employed, Burger King famously said “special orders don’t upset us”. Are they made-to-order sandwiches? And let’s not re-open the fight on what a bahn mi is or isn’t.
@Kathy:
That’s what I was coming to say as well. I find this decision baffling.
So when my grandma told me that she was going to make me a
navel lint and toe jam sandwich for lunch just so she could laugh and laugh as I gagged and ran into the bathroom, her recipe would have been allowed as long as it was between two pieces of white bread.
The question should not be a legal matter. The zoning board should allow all kinds of restaurants.
What is the government interest in banning “fast food restaurants”? They cause crimes? Cops hang out there and don’t patrol high crime areas?
James, I agree with your thought that the original concern was the odor of hot french fry oil, hot fat on flat grills venting to the outside. Our HOA voiced concerns when a mixed use property was proposed on our boundary. The result was a non-franchise local coffee shop and a franchise Gyro shop called Mediterranean Grill which obviously has a grill but no deep fried items. It worked out for us.
Please consult the Sandwich Alignment Chart
Just say “fast food restaurants” attract the poors and increases crime because as the COVID pandemic proved “poverty causes crime”.
@Paul L.:
OK that was totally non-linear even for you, can you unpack all those steps–in particular the “COVID pandemic proved ‘poverty causes crime'” thing?
@Stormy Dragon: “Can contain a broader scope of savory ingredients.” [emphasis added]
So jam between two slices of bread isn’t a sandwich? Huh!
@Matt Bernius: In defense of Paul L (and, FTR, I never thought I’d say that phrase), I get where he’s coming from on the “‘fast food restaurants’ attract the poors” because the upscale suburban neighborhood that I lived in when I made money while I was young blocked such enterprises outside of the shopping mall and its surrounds for that exact reason. We wanted our neighborhood restaurants to be just that–restaurants for us, not for them. And predominantly for the reason he noted later–letting those people into the neighborhood only stimulated crime.
The other part about Covid has me confused though; I thought that during the pandemic crime went down because everyone was stuck at home making their place hard to burgle, cutting down robberies and assaults of various kinds, and so on.
ETA: I realized after I posted that I should have noted that I was even more of a horrible bigot when I was younger than I am now.
@Paul L.:
1. If this is on condo property, their rules matter more than zoning. However,
2. Get serious. This is deep red Indiana, “the Alabama of the North.” Everyone knows “zoning” is a communist plot and only godforsaken liberal hell-holes practice it.
@Matt Bernius:
The Majority Report (Sam Seder) claimed that crime went up during Covid because of increased poverty not because of reduced policing due to St. George Floyd/BLM.
Actual Justice Warrior on YouTube has been having feud with them over crime denial.
Perhaps the only universal rule is “Everybody likes Mexican”. Maybe Italian too, but that’s another matter. You can go just about anywhere an find a Mexican restaurant doing well. Denmark to Cairo, Moscow to Tokyo one can find Mexican, and Mexican done well.
There HAD to be some way to allow those tacos, there simply HAD to be.
Well if poverty causes crime, one idea might be to try to reduce poverty. Ta-da!
Also, Potbelly’s is far superior to either Subway or Jimmy John’s.
A hot dog is a taco.
Fight me.
@Tony W: Does that mean a Scotch Egg is a calzone?