What is a Taco?

A recent Indiana case, Quintana v. Fort Wayne Plan Commission, No. 02D02-2212-PL-000414, has garnered national media attention for its controversial holding that a taco is a “Mexican-style sandwich.” Martin Quintana, the owner of a commercial development in Fort Wayne, Indiana, sought an amendment to a written commitment with the city plan commission which restricted his commercial development from containing any restaurants except for, “[a] sandwich bar-style restaurant whose primary business is to sell ‘made-to-order’ or ‘subway-style’ sandwiches.” Quintana’s proposed amendment would have allowed for a ‘Famous Taco’ restaurant to operate in the development. However, when the suggested amendment failed in front of the Fort Wayne Plan Commission, Quintana applied for judicial review. While the Court refused to set aside the zoning commission’s decision to deny the amendment, the Court determined that a Famous Taco was allowed under the original text of the restriction, because a taco is actually a Mexican-style sandwich. The Court said, “tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches.” The Court even takes this argument beyond the taco, stating that the restriction would “also permit a restaurant that serves made-to-order Greek gyros, Indian naan wraps, or Vietnamese banh mi. . . .”

This isn’t the first case to litigate the taco sandwich question. Almost 20 years ago, the Superior Court of Massachusetts, Worcester County, came to the opposite conclusion. In White Shopping Center, LP v. PR Restaurants, LLC, 2006 WL 3292641 (Mass. Super. Oct. 31, 2006), PR Restaurants leased a space at White Shopping Center to operate a Panera Bread. PR’s lease contained a clause that restricted the Landlord from entering a lease with another restaurant that would have annual sales of sandwiches greater than ten percent of its total sales. When White Shopping Center signed a lease for a Qdoba restaurant, PR claimed that tacos, burritos, and quesadillas were, in fact, sandwiches and that the Landlord violated the terms of their lease. The Court disagreed. Using the Webster’s Dictionary definition of sandwich (“two thin slices of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them”) and “common sense,” the court found that the word sandwich was not commonly understood to include a burrito, a taco, or a quesadilla and that PR’s claim of breach therefore failed.

The Superior Court of Massachusetts’s decision drew a fan, then Supreme Court Justice, Antonin Scalia. In his book, Reading the Law: The Interpretation of Legal Texts (2012), Scalia, and his co-author, Brian Garner, applauded the court’s use of the dictionary definition of sandwich to define the common meaning of the term and agreed that “no reasonable speaker of English would call a taco, a burrito, or a quesadilla a ‘sandwich’.” But is it really that simple? Judge Richard Posner disagreed with Scalia and Garner. Posner pointed out the dictionary definition of a sandwich would leave out a club sandwich, which has three slices of bread; an open face sandwich, which only has one; and a hamburger, which has a bun and no bread. But more importantly to Posner, the Court’s focus on a dictionary definition of a sandwich drew focus from the parties’ subjective understanding of the term when they entered the contract, which Posner believed to be more important in determining the outcome of the case.

So, is a taco a sandwich? Apparently, it depends on the Judge. When attempting to create limiting language, it may be favorable to use language in the agreement that will allow for the broadest understanding of a term. In Hobwen, Inc v. Sisbro Management, L.L.C., 2012 WL 933755 (Mich. Ct. App. Mar. 20, 2012), Hobwen, Inc., an entity that operated a Wendy’s restaurant, sought to prevent the construction of a Taco Bell restaurant on a plot of land that contained a use restriction that stated the property “shall not be used for a restaurant…the primary business of which is the sale of hamburgers, hamburger products, or chicken sandwiches…” The Court reversed the trial court as to whether the term “hamburger products” was ambiguous. Using a dictionary definition again, the Court concluded that the term was not ambiguous, stating “the term ‘hamburger products’ plainly means ground beef items that are produced or made or, stated another way, items made with ground beef,” thus including Taco Bell tacos.

Not every instance can be planned for, but these cases highlight the importance of being as specific as possible when considering use restrictions. Otherwise, you may find an unintended result, such that a wrap is a burrito, a smoothie is a shake and a dish of pasta is a bowl of ramen. 

Authors:  Marcia Owens, Partner, and Max Schneberger, Summer Associate

Marcia Owens is the Chair of the Retail Industry Group and a Partner at Honigman LLP. Her practice focuses on representing developers and investors and spans all aspects of commercial real estate, from acquisition and disposition, to commercial leasing, finance, workouts and restructuring.