Hooda Corp. v. Texas Alcoholic Beverage Commission

370 S.W.3d 458, 2012 WL 1881055, 2012 Tex. App. LEXIS 4218
CourtCourt of Appeals of Texas
DecidedMay 24, 2012
DocketNo. 05-11-00064-CV
StatusPublished
Cited by2 cases

This text of 370 S.W.3d 458 (Hooda Corp. v. Texas Alcoholic Beverage Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hooda Corp. v. Texas Alcoholic Beverage Commission, 370 S.W.3d 458, 2012 WL 1881055, 2012 Tex. App. LEXIS 4218 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By Justice MORRIS.

This appeal challenges an administrative order denying an application to renew a wine and beer retailer’s off-premise permit. In a single issue, Hooda Corporation, Inc. d/b/a Esters Chevron contends the denial of its application based on an alleged violation of a zoning ordinance was not supported by substantial evidence. Because there was no substantial evidence, Hooda argues the county judge erred in refusing to renew the permit and the trial court erred in affirming the county judge’s order. After reviewing the record, we conclude Hooda’s argument is without merit. We affirm the trial court’s judgment.

[460]*460I.

Hooda Corporation, Inc. d/b/a Esters Chevron filed an application with the Texas Alcoholic Beverage Commission to renew its wine and beer retailer’s off-premise permit. The city secretary of the City of Irving protested the renewal alleging that the place or manner in which Hooda conducted its business required the denial of Hooda’s application. Specifically, the city secretary alleged that Hooda’s business was being conducted in violation of the City’s Comprehensive Zoning Ordinance No. 1144 as amended by ordinance ORD-2008-9009 because it was selling alcoholic beverages within three hundred feet of a private school. The TABC rejected Hooda’s renewal application and referred the matter to a county judge for an administrative hearing.

At the administrative hearing, Steven A. Reed, head of the zoning department for the City, testified that he was familiar with the city ordinance at issue. The ordinance, as amended, states,

The sale of alcoholic beverages within three hundred (300) feet of a church, public or private school, or public hospital is hereby prohibited. The measurement of the distance between the place of business where alcoholic beverages are sold and the church or public hospital shall be along the property lines of the street fronts and from front door to front door and in a direct line across intersections. The measurement of the distance between the place of business where alcoholic beverages are sold and the public or private school shall be ... in a direct line from the property line of the public or private school to the property line of the place of business, and in a direct line across intersections....

Reed testified that the City determined Hooda’s property line was forty feet from the property line of the Holy Family of Nazareth School, a private Catholic grade school. An aerial photograph demonstrating the distance between the properties was admitted into evidence. Based on the City’s measurement of the distance between the properties, Reed testified that Hooda was in violation of the zoning ordinance. Reed conceded that Hooda’s original permit to sell alcohol was granted in error.

On cross-examination, Reed stated that the Holy Family of Nazareth School was part of the Holy Family of Nazareth Catholic Church, which ■ was located on the same property. Reed further stated that, to the best of his knowledge, the church owned the property at issue. Reed acknowledged that, under the zoning ordinance, the method used to measure the proximity of a business selling alcohol to a church was different than the method used to measure the proximity of such a business to a school. Reed also acknowledged that the ordinance did not directly address the circumstance of a school and a church being located on the same property.

Hooda contended that, because the ordinance did not address the proper method of measuring the distance between a business selling alcohol and a school when the school was located on the same property as a church, the ordinance was too vague to be enforced in this case. Alternatively, because the property at issue was owned by the church, Hooda argued the measurement method used to determine the distance between the two properties should be the one applicable to churches. Reed testified he did not know the distance between Hooda’s property and the church’s property using the method of measurement applicable to churches.

After hearing the evidence, the county judge signed an order denying Hooda’s application to renew its wine and beer off-premise permit and issued findings of fact [461]*461and conclusions of law. In his conclusions, the judge stated the City’s zoning ordinance was not vague and the proper method of measuring the distance between the two properties at issue in this case was the one applicable to schools. The judge further concluded the City had proven that Hooda’s property line was less than 300 feet from the property line of a private school and, therefore, the sale of alcoholic beverages on Hooda’s property would violate the zoning ordinance. Finally, because Hooda’s sale of alcohol would violate the ordinance, the judge refused to renew Hooda’s permit based on his concern for the “general welfare, health, peace, morals, safety, and sense of decency of the people living in the community.”

Hooda appealed the county judge’s order to the district court pursuant to section 61.34 of the Texas Alcoholic Beverage Code. After reviewing the record and the arguments of counsel, the district court found that the county judge’s order was supported by substantial evidence. Hooda now brings this appeal asking us to reverse the district court’s judgment affirming the county judge’s order.

II.

Hooda asserts a single issue contending there is no substantial evidence to support the county judge’s order denying its permit application because the judge applied the wrong method of measurement to determine whether Hooda was in violation of the zoning ordinance. The substantial evidence rule governs our review of both the county judge’s administrative order and the trial court’s judgment affirming the order. See Four Stars Food Mart, Inc. v. Texas Alcoholic Beverage Comm’n, 923 S.W.2d 266, 269 (Tex.App.-Fort Worth 1996, no writ). The burden is on Hooda, as the licensee, to show that the administrative order was not reasonably supported by substantial evidence. Id. 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. Id.

Texas law has long recognized a legitimate concern in regulating the location of a business selling alcohol for purposes of protecting the general welfare. See Blackman v. City of Big Sandy, 507 F.2d 935, 936 (5th Cir.1975). A county judge must deny an application for a license to sell alcohol 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.” See Tex. Alco. Bev.Code Ann. § 61.42(a)(3) (West Supp. 2011). In addition, the Texas Legislature has specifically recognized that the sale of alcohol in the vicinity of churches and schools should be regulated. As a reflection of this, the legislature enacted section 109.33 of the Alcoholic Beverage Code.

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Bluebook (online)
370 S.W.3d 458, 2012 WL 1881055, 2012 Tex. App. LEXIS 4218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooda-corp-v-texas-alcoholic-beverage-commission-texapp-2012.