Posted by: Patricia Salkin | August 2, 2012

Texas Court of Appeals Finds Substantial Evidence Exists to Uphold City’s Denial of a Wine and Beer Retailer’s Off-Premise Permit

Appellant applied to renew a wine and beer retailer’s off-premise permit. The city secretary alleged that the business was being operated in violation of a city ordinance because it was selling alcoholic beverages within three hundred feet of a private school. The Texas Alcoholic Beverage Commission denied the renewal of the permit and referred the matter to a county judge for an administrative hearing.

The ordinance at issue outlined different ways of measuring the 300 feet that must be between an alcohol serving establishment and a church or a school. The different measurements allow alcohol serving establishments to be slightly closer to a church than they can be to a school. The property that appellan’ts land is near is a private school that is owned by a church. The county judge found that the proper method of measuring the distance between the two properties was the one applicable to schools. This put the property in question within 300 feet of a school and thus in violation of the ordinance. Appellant then appealed to the District court that upheld the County judge’s order. Appellant then appealed again.

On appeal, the Appellant asserted only that there was no substantial evidence to support the county judge’s order denying the permit. The court held that the burden was on the appellant to show that there was no substantial evidence and that substantial evidence must be more than a mere scintilla, but the evidence may preponderate against the county court’s decision and still amount to substantial evidence.

In reviewing the County Courts decision the Court determined that according to state law, a county judge may deny a permit if he has reasonable grounds to believe and find that the place or manner in which the applicant for a retail dealer’s license may conduct his business warrants a refusal based on the general welfare, health, peace, morals, safety and sense of decency of the people living in the community. The County ordinance reflects this belief, finding that it is in the best interest of the public’s general welfare, health, peace, morals, safety and sense of decency to prevent alcohol sales within a certain distance of certain establishments. This being said, if the appellants business is in an area where the sale of alcohol was prohibited, the county had reasonable grounds to find that the sale of alcohol there was a threat to the general welfare and denial if the permit was proper.

Appellant does not argue that he is not within 300 feet of a school, rather, because the church owns the property, the presence of a school is irrelevant. The court found this unpersuasive as accepting this would nullify the specific protection given to schools under the ordinance and therefore, thwart the intent of the legislature in enacting the law.  The Court upheld the decision of the County Judge denying the permit.

Hooda Corp., Inc. v. Texas Alcoholic Beverage Comm’n, 05-11-00064-CV, 2012 WL 1881055 (Tex. App. 5/24/2012)

The opinion can be accessed at: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_12.ask+D+7882984


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