Pushed Around

Mark Lynch means business. He gets out of bed at 3:15 every weekday morning, and soon the oven in his small Montrose apartment emits the entrepreneurial aromas of his baking muffins. Then Lynch turns to the assembly-line task of sandwich-making.

Despite limitations of a right arm and leg partially paralyzed since birth, Lynch has his daily batch of goods finished in time for his 6 a.m. ride to the aging St. George Hotel in the north end of downtown.

He has his tidy silver vendor's cart loaded there shortly before 7 a.m. Lynch, sometimes aided by homeless ex-carny Winston Briggs, pushes the two-wheeled cart to the corner of Preston and Caroline streets.

Then Lynch's Finest, sporting a broad tan-and-green umbrella, opens for another day. For the past two years, the bearded man with the quiet smile has catered to clientele at various locations in the county's courts complex.

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He sells a modest number of bottled soft drinks, doughnuts, baked goods and poor boy sandwiches to an odd mixture of attorneys, jurors, judges and even those newly released from the county jail just two blocks up the street. Along with the sales, Lynch dispenses directions. He makes change and small talk with the parade of participants in the justice system.

His counterparts in other metropolitan areas are considered an integral part of their vibrant urban scenes, which are coveted by Houston's downtown revitalization forces.

But Lynch is the lone daily street-cart vendor in Houston's central core. And based on his reception by city personnel, one vendor may be too many. Despite the seeming allure of pushcarts to a reinvigorated downtown, regulators have hounded Lynch with citations and city-code complaints.

The extent of that enforcement effort makes Lynch and his supporters shake their heads. Even City Councilman Joe Roach showed up to criticize Lynch, they say.

"He was scared to death -- very nervous about the whole thing," says Peter Heckler, an attorney who volunteered to defend Lynch in court.

"I watched him, this little guy pushing that heavy cart up the street every damned day, in every kind of weather, and never ever complaining about any of it," Heckler says. "And then here was the might of City Hall and city prosecutors beating up on him.

"It wasn't fair. It really pissed me off."

After vanishing from the Houston scene of earlier decades, pushcart vendors made a temporary comeback when the city licensed them to sell in Houston parks 12 years ago. But that effort was considered a failure. The customer traffic did not support operating expenses, and pushcarts that meet code specifications can cost more than $5,000.

Today ice cream vendor carts roam some neighborhoods. Others can be seen during festivals and special events. Malls and the downtown tunnel system sport pseudopushcarts that are little more than decorative stationary stands peddling beverages or snacks.

But Lynch, 44, wanted an authentic return to the pushcarts of Houston past. He had worked as an assistant manager in a restaurant and had other food-service experience. When he made his decision to pursue the pushcart plan, he was juggling three jobs: One was for a Randalls Flagship store, another was for a Wendy's outlet, and the third was selling ice cream from a cart.

"I knew that wasn't what I wanted to do," says Lynch. He took his menial savings and invested in his personal dream. "I wanted to own my own business. I wanted to be my own boss."

However, he soon learned the lesson of vendors: that the supreme boss is the maze of city ordinances and the people who interpret them.

City health department spokeswoman Kathy Barton says the regulations are to ensure that "mobile food vendors" comply with the Houston sanitation code. The licensed pushcart must be affiliated with a food commissary. Fresh water must be available. Sandwiches must be kept at a proper temperature. For cooked food such as hot dogs, a two-compartment sink must be attached for washing utensils on the cart.

Lynch got his commissary affiliation and license showing compliance two years ago, but that did not stop the confrontations. City inspectors were soon protecting potential customers from all manner of perceived health threats. Lynch, it seems, was selling muffins and sandwiches in wrappings that failed to state the ingredients and his address. He printed up labels, and the inspectors briefly left him alone.

Then his carafe-style coffee pots drew their ire. One anonymous complaint, filed early last year with the health department, accused Lynch of "selling hamburger, coffee, etc. all day and night." Lynch sells no hamburgers, and he closes the cart by mid-afternoon.

He dipped into his earnings to satisfy another law that requires him to buy and attach a $275 plastic-faced cooling container for the sandwiches.  

But these early problems paled in comparison to the central issue: where he can stop his pushcart to make a sale. An ordinance prohibits Lynch from parking it on a public sidewalk or street. But to make a go of his business, Lynch has to move to intersections with the most pedestrian traffic.

Lynch, with the help of a lawyer, appealed to City Council to allow street sales. The vendor says the next day Councilman Roach appeared at his cart and told Lynch he "should have picked a better attorney."

Roach's personal interest did not stop there. He was back another day to tell Lynch to get out of the street, the vendor says. Fifteen minutes after the councilman walked away, an inspector issued Lynch a ticket for selling on a public street.

Within a span of two weeks, Lynch got two more tickets, forcing him to relocate. Then, the vendor says, Roach came by and thanked him -- for moving.

By then Lynch was not without allies in his struggles. Some judges even touted his cart to jurors before court breaks. His regulars included lawyers who were outraged when Lynch confided in them about the city charges against him. With attorney Heckler at his side, he took the battle into the heart of municipal court.

Heckler got some of the citations thrown out on legal grounds. And he demanded trial on the most serious: selling foodstuffs on a location dedicated to public use. Fines could exceed $1,000, the attorney notes.

"To a restaurant or company, those fines might be a pittance," Heckler says. "But here's a guy peddling coffee and doughnuts and such, trying to make a few bucks. To him, it would be a king's ransom."

Heckler notes that none of the allegations remotely involved any sanitation violations. As Lynch had told Roach and the inspector, his cart was parked on a section of street closed for the construction of the county's new air-conditioning plant. And he was there with the specific permission of the engineering company which had leased that portion of the street for the project.

The defense introduced the letter from the company, reiterating the permission for the pushcart. Heckler waived a jury and presented his evidence to veteran Municipal Judge Sam Alfano. "He's a very compassionate person who has sympathy for the underdog," Heckler says. "He was the perfect judge to hear this case."

The verdict: not guilty.

However satisfying, the legal victory hardly signaled an onslaught of mobile vendors downtown.

Bob Eury of the Central Houston group, one of Lynch's supporters, says carts could add color and life to the city's central core, but few people have been willing to wade through the regulations and expense of the venture.

Some of those involved say more is at stake, that city personnel had more than public health in mind in their keen interest to closely regulate Lynch.

One city official privately says that the politically influential restaurant industry is involved behind the scenes. Restaurant owners don't hesitate to call city councilmembers and demand impromptu inspections of possible competition, no matter how small, the official says.

Councilman Roach scoffs at the reports that he had any personal interest in an enforcement effort against Lynch. He notes that he is an attorney who regularly appears in the courts complex. Roach adds that he is a regular customer of the vendor and has never had harsh words with him. Lynch declined to elaborate, saying the dispute is over.

Despite the explosion of downtown eateries, Eury says restaurants there have some legitimate concerns about the competition from street vendors. Business is already marginal for many, Eury says. It has been only in the past couple of years, with the revitalization movement, that supply and demand for restaurants has equalized, he says.

"We're really on the cusp right now," Eury says. "We're still at that point where if you try to open one restaurant, you have to close another one. The restaurants may be changing, but we're staying the same in terms of total dollar volume downtown."

Welcoming cart vendors will be hard if regular restaurant owners, who have made a substantial investment in downtown, are forced out of business, Eury says. But downtown restaurants have less to fear as they diversify and specialize and as more people are drawn downtown during days and evenings, he says.

Dan Tidwell, co-owner of Treebeards on Market Square, has no problem with vendors. "I think they should be here. It just adds another dimension to downtown," Tidwell says. "I don't see them as a threat. They offer a completely different type of food."  

Attorney Heckler laughs when asked about the concerns that food establishments have regarding vendors such as Lynch. He says it is ludicrous to think that a guy who hawks morning bagels and coffee, at a time when eateries aren't even open around the courts complex, is taking away customers. People in the market for a full sit-down meal aren't going to make do with poor boys from a pushcart, he notes.

Heckler adds that other metropolitan areas -- New Orleans, San Francisco, New York -- prove that vendor operations have a positive impact on the downtown experience and the restaurant industries there.

The Houston Restaurant Association did not return calls for comment, although it appears that Houston City Council is content for now to keep pushcarts off the streets.

Lynch asked councilmembers to allow vendors to operate on public property. In general, councilmembers say the issue should be left up to the health department, and the health department says potential changes should be left to City Council.

Councilman Chris Bell, another Lynch customer, says it's probably time to take a look at allowing vendors into certain high-traffic areas downtown, although the restaurant industry would have a say in any revisions.

"Everyone agrees it could be a plus for downtown," Bell says. "If you limited the boundaries, I don't think it would be too hard to do."

Only blocks from Lynch's cart rises the pale-teal steel of the baseball stadium project. Lynch sees the future in the crowds heading to games there: the hot-dog consumers. He would like to see an ordinance that would allow him to have five or ten carts staffed by homeless men or military veterans in key zones such as around the stadium.

"I really can't give up. I put all my time and my money into it. I put a lot of effort into it," Lynch says. "I'm not out to hurt anybody. I'm not out causing any trouble. I just want the chance to run my own business.

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