Affirmed and Majority and Dissenting =
Opinions=20
filed December 18, 2007.
In The
Fourteenth Court=20
of Appeals
_______________
NO. 14-06-00472-CV
_______________
SUPERMERCADO TELOLOAPAN, =
INC.
D/B/A TELOLOAPAN MEAT MARKET,=20
Appellant
V.
CITY OF HOUSTON,=20
Appellee
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On Appeal from the 80th District=20
Court
Harris County, Texas
Trial Court Cause No.=20
05-60093
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M A J O R=20
I T Y O P I N I O N
In this declaratory =
judgment=20
action, appellant, Supermercado Teloloapan, Inc. d/b/a Teloloapan =
Meat=20
Market (ASupermercado@), appeals a =
take-nothing=20
judgment in favor of appellee, the City of Houston (Athe City@). In=20
Supermercado=3Ds sole issue, it =
argues that=20
the trial court erred in finding that the City=3Ds definition of the =
term=20
Aproperty =
line@ is reasonable and =
consistent=20
with the plain meaning of section 3-2(a) of Houston=3Ds Code of Ordinances. =
We=20
affirm.
BACKGROUND
Supermercado operates =
a grocery=20
store in Houston. In 2005, Supermercado applied for an =
off-premises=20
liquor license with the Texas Alcoholic Beverage Commission (the=20
ACommission@), which would enable =
Supermercado to sell beer and wine for off-premises =
consumption. To=20
satisfy a condition for the permit, Supermercado requested the =
City to=20
certify that the location of its store was in a Awet area@ and that the sale of =
alcoholic=20
beverages at the store was not prohibited by city ordinance. =
See Tex. Alco. Bev. Code Ann. ' 61.37 (Vernon =
2007). =20
However, the City refused to certify the store as a Awet area@ pursuant to section =
3-2 of=20
Houston=3Ds Code of Ordinances=20
(Athe =
Ordinance@), which prohibits =
the sale of=20
alcoholic beverages within 300 feet of a public or private =
school. =20
The store=3Ds property line abuts =
the=20
property line of an adjacent apartment complex, which leases a =
portion of=20
its property to a charter school. The charter school leases =
a total=20
of four buildings (the Aleased =
buildings@) for school use from =
the=20
apartment complex. However, the actual leased buildings are =
more=20
than 300 feet away from the store=3Ds property line. The=20
City refused to certify Supermercado because the distance between =
the=20
store=3Ds property line and =
the=20
apartment complex=3Ds property line is =
less than=20
300 feet.
Thereafter, =
Supermercado sought=20
a declaratory judgment and requested that the trial court declare =
the=20
Ordinance and section 61.37 of the Texas Alcohol and Beverages =
Code (the=20
ACode@) require that the =
distance be=20
measured from the leased buildings, and that the term Aproperty =
line@ refers to the leased =
buildings=20
controlled by the charter school rather than the property line of =
the=20
entire tract of land upon which the leased buildings are =
located. =20
The City interpreted Aproperty =
line@ to mean the boundary =
of the=20
entire tract of land on which the leased buildings are =
located. =20
After a bench trial, the trial court denied the relief sought by=20
Supermercado and found that the City=3Ds interpretation of=20
Aproperty =
line@ was =
reasonable. =20
DECLARATORY=20
JUDGMENT
In its sole issue, =
Supermercado=20
contends that the trial court erred in finding that the =
City=3Ds definition of the =
term=20
Aproperty =
line@ is reasonable and =
consistent=20
with the plain meaning of the statute. =
Section 3-2 of=20
Houston=3Ds Code of Ordinances =
provides=20
in pertinent part:
(a) It shall be unlawful for any dealer =
to sell=20
alcoholic beverages within the corporate limits of the city where =
the=20
place of business of such dealer is within 300 feet of any church, =
public=20
elementary, junior high or high school, or public hospital or =
within 300=20
feet of a Aprivate school@ as that term is defined in Section =
109.33 of the=20
Texas Alcoholic Beverage Code. It shall be unlawful for any =
dealer=20
to sell alcoholic beverages in any area designated by the city =
council, as=20
provided in subsection (e) below, as an Aalcohol-free school zone.@ The measurement of the distance =
between the=20
place of business where alcoholic beverages are sold and the =
church,=20
public hospital, public school, or private school shall be made as =
provided in Section 109.33 of the Texas Alcoholic Beverage =
Code. =20
This section shall be administered in a manner that is consistent =
with=20
Section 109.33 of the Texas Alcoholic Beverage Code and shall not =
apply to=20
any alcoholic beverage license or permit to which that section is=20
inapplicable.
Section 109.33 of the =
Texas=20
Alcoholic Beverage Code provides in pertinent part:
(a) =
The=20
commissioners court of a county may enact regulations applicable =
in areas=20
in the county outside an incorporated city or town, and the =
governing=20
board of an incorporated city or town may enact regulations =
applicable in=20
the city or town, prohibiting the sale of alcoholic beverages by a =
dealer=20
whose place of business is within:
(1) =
300 feet=20
of a church, public or private school, or public =
hospital[.]
(b) =
. . . The=20
measurement of the distance between the place of business where =
alcoholic=20
beverages are sold and the public or private school shall =
be:
(1) =
in a=20
direct line from the property line of the public or private school =
to the=20
property line of the place of business, and in a direct line =
across=20
intersections[.]
Supermercado=3Ds issue turns on the=20
City=3Ds construction of the =
Ordinance=20
and its definition of Aproperty =
line.@ In construing =
a statute,=20
our objective is to determine and give effect to the intent of the =
governing body. State v. Shumake, 199 S.W.3d 279, 284 =
(Tex.=20
2006). If a statute is clear and unambiguous, we must apply =
its=20
words according to their common meaning. Id. If =
the=20
language at issue is ambiguous, we give deference to the governing =
body=3Ds interpretation of =
the=20
language. Fiess v. State Farm Lloyds, 202 S.W.3d 744, =
747=20
(Tex. 2006). We give serious consideration to a governing=20
body=3Ds construction of a =
statute=20
that it is charged with enforcing, as long as the interpretation =
is=20
reasonable and does not contradict the plain language of the=20
statute. Miami Ind. Sch. Dist. v. Moses, 989 S.W.2d =
871, 875=20
(Tex. App.CAustin 1999, pet. =
denied).=20
At trial, Rhonda =
Rhea, the=20
division manager for the commercial permitting and enforcement =
section of=20
the City of Houston, testified that the City defines Aproperty =
line@ as the boundary of =
the tract=20
of land on which the property is located. Rhea testified =
that to=20
find
the appropriate =
boundary line,=20
the City sends an investigator to look at the property. If =
the=20
property line is readily discernible, the investigator measures =
the=20
distance. If the property line is not readily discernible, =
the=20
investigator locates the tract of land in the records of the =
Harris County=20
Appraisal District. In this case, the City resorted to the =
Appraisal=20
District=3Ds records and =
discovered that=20
the property line of the apartment complex and the property line =
of the=20
store touched one another.
Dale Evans, regional =
supervisor=20
of compliance for the Commission, testified that although the =
Commission=20
does not measure distances under section 109.33, it does measure =
distances=20
for purposes of issuing a conduct surety bond. When =
measuring=20
distances for such a bond, the Commission uses the definition of =
premises=20
as a guide. If a business leases from a shopping center =
owner, the=20
Commission measures the distance from the leased space or an area=20
controlled by the business. Evans testified that if he were=20
measuring the distance from Supermercado to the school for =
purposes of a=20
cost surety bond, he would measure from the area controlled by=20
Supermercado to the area controlled by the school.
The Code mandates =
that the=20
measurement be made from Athe property line of =
the public=20
or private school to the Aproperty =
line@ of the place of=20
business[.]@ The issue in this =
case is how=20
the City defines the Aproperty =
line@ of the school. =
Neither=20
the Ordinance, nor the Code defines Aproperty =
line.@ Further, the =
Ordinance=20
does not address an instance in which the school or the business =
leases=20
property, but does not occupy the entire tract of land on which it =
sits.
In interpreting the =
Ordinance,=20
the City determined that Aproperty =
line@ refers to the =
boundary of the=20
tract of land on which the property is located. We find that =
its=20
interpretation of the term Aproperty =
line@ is reasonable and =
does not=20
contradict the plain language of the statute. Therefore, as =
the=20
standard of review requires, we affirm the trial court=3Ds =
judgment.
/s/ =20
Adele Hedges
Chief Justice
Judgment rendered and =
Majority=20
and Dissenting Opinions filed December 18, 2007.
Panel consists of =
Chief Justice=20
Hedges, Justice Fowler, and Senior Justice Edelman.*(Edelman, J.=20
dissenting).
Publish=20
C =
Tex. R. App. P.=20
47.2(b). =20
* =
Senior Justice =
Richard H.=20
Edelman sitting by assignment.
=20
In addition, between the property line of the store and the =
property line=20
of the leased buildings are several other apartment buildings, a =
driveway,=20
and a tennis court.
=20
The dissent believes this Court does not have jurisdiction to =
address the=20
merits of the declaratory judgment because the Commission has =
exclusive=20
jurisdiction. The dissent finds that the issuance of the=20
certification by the City in this case is but Aone step@ in the process of seeking a permit from =
the=20
Commission. Relying on Sells v. Roose, 769 S.W.2d =
641, 643=20
(Tex. App.CAustin 1989, no writ), the dissent =
concludes that=20
Supermercado=3Ds remedy lies with the administrative=20
agency. In Sells, Roose and other business owners =
applied for=20
a beer retailer=3Ds permit with the Commission. The =
county=20
clerk refused to certify that Roose=3Ds premises were in a Awet@ area. The business owners filed a =
petition=20
for writ of mandamus seeking to=20
compel Sells to perform her =
statutory=20
duty and issue the certificate. The court of appeals found =
that=20
Sells=3Ds duty to issue a certificate as to the=20
Awet@ or Adry@ status of a location arises only in =
connection=20
with an application for a permit authorized by the Code. =
Id.=20
at 643. In that regard, the court recognized exclusive =
jurisdiction=20
in the administrative agency, with the result that the district =
court=20
lacked subject-matter jurisdiction. Id. In this =
case,=20
however, Supermercado filed a declaratory judgment action seeking=20
clarification of a Houston City ordinance. Unlike the =
business=20
owners in Sells, Supermercado did not seek to compel the =
City to=20
issue a certification of Awet@ status. Supermercado sought a =
declaratory=20
judgment to interpret the Ordinance, which is specifically =
permitted by=20
the Texas Civil Practice and Remedies Code. See Tex. =
Civ.=20
Prac. & Rem. Code Ann.' 37.004(a) (Vernon 1997). Supermercado is not required to exhaust=20
administrative remedies with the Commission to obtain an =
interpretation of=20
the Ordinance. See Burgess, 101 S.W.3d at 554. =20
Therefore, Supermercado=3Ds cause of action and remedy for =
enforcement is=20
not derived from the Code.
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