TABC responds after NewsChannel 11 story - KCBD NewsChannel 11 Lubbock

8/20/09

TABC responds after NewsChannel 11 story

Posted:

LUBBOCK, TX (KCBD) - One day after NewsChannel 11 broke the story that the Lubbock Chamber has filed a counter-protest concerning the sale of alcohol in Lubbock & Lubbock County, the TABC responds. 

A statement from Carolyn Beck, TABC Public Information Officer, says in part, "Because of the complexity of the issues, it could be several weeks before a hearing is scheduled. Because of full court dockets, it could be several months before any hearings take place. "

The entire statement is copied below.


FOR IMMEDIATE RELEASE   August 20, 2009

Citizen Protests Delay Processing of TABC Permit Applications in Lubbock County

A countywide local option election was held in Lubbock County on May 9, 2009, legalizing the sale of:

-Alcoholic beverages for off-premises consumption (e.g., beer, wine and spirits in grocery stores, convenience stores and liquor stores)

-Alcoholic beverages for on-premises consumption in a restaurant that holds a food and beverage certification (e.g., beer, wine and spirits in restaurants)

Following the election, because of zoning issues, a temporary restraining order in the City of Lubbock prevented any permits from being issued within the city limits for several months. That restraining order was lifted on August 10, 2009.

However, delays will continue for businesses in Lubbock County. TABC has received three general protests, as well as several specific protests, regarding applications for new licenses and permits for locations in the county.

The basis for these protests is this: There is some disagreement among the citizens of Lubbock County (including within the City of Lubbock) over how to interpret a law that says that the wet/dry status resulting from a city or Justice of the Peace (JP) precinct election prevails against the status resulting from a countywide election. See Section 251.73 of the Alcoholic Beverage Code below.

Both sides of the disagreement have a legitimate claim, and it is a disagreement that will be settled in a court of law by a judge. TABC will take a neutral stance throughout the process.

Any application in the county for permit types that were not already legal prior to the May election could be subject to a protest hearing which will delay, or possibly stop, the issuance of the permit.

Protest hearings will be held in the City of Lubbock, either before the Lubbock County Judge or before the State Office of Administrative Hearings (SOAH), depending on the type of license or permit involved.

"We recognize the sense of urgency on the part of the business owners and the community when it comes to having this issue settled, and we will move forward as quickly as possible." said Public Information Officer Carolyn Beck. "Although the ballot measures passed with an overwhelming majority, TABC cannot issue permits without following the law."

Because of the complexity of the issues, it could be several weeks before a hearing is scheduled. Because of full court dockets, it could be several months before any hearings take place.

"People on both sides of the issue feel very strongly," continued Beck, "and both the protestants and the applicants will be given the opportunity to be heard by a judge. Our agency is committed to facilitating a fair and transparent process and keeping the citizens of the county informed as it moves forward. Unfortunately, it is unlikely that the issue will be resolved quickly."

Following the May 9th election, prior to protests being filed, several permits had already been issued in Lubbock County that were new permit types for the communities: Goble Supply Auto & AG Supply in Abernathy (wine and beer off-premises); Rick's Place - Liquor in Wolfforth (package store and beer off-premises); Kwik Stop in Wolfforth (package store and beer off-premises); Cagle Steaks outside Lubbock city limits (mixed beverage in a restaurant). If a judge rules that these areas are dry, it is unclear at this time what will happen to these permits. However, TABC does not have the legal authority to cancel a permit without the permit holder being given an opportunity to be heard before a judge.

Contact:   Carolyn Beck, Public Information Officer, 512-206-XXXX

Additional Information

Wet-Dry Certification

Before TABC processes a license or permit application, the city and county must certify the application as being at a location that is wet for that type of permit. TABC issues licenses and permits based on the wet-dry certification from the city and county. TABC's role is not to determine whether a location is wet or dry. Any disagreement with the city or county's wet-dry certification will be settled through a hearing process.

Relevant Excerpt from the Alcoholic Beverage Code

Sec. 251.73. Prevailing Status: Resolution of Conflicts. To insure that each voter has the maximum possible control over the status of the sale of alcoholic beverages in the area where he resides:

(1) the status that resulted from or is the result of a duly called election for an incorporated city or town prevails against the status that resulted from or is the result of a duly called election in a justice precinct or county in which the incorporated city or town, or any part of it is contained; and

(2) the status that resulted or is the result of a duly called election for a justice precinct prevails against the status that resulted from or is the result of a duly called election in an incorporated city or town in which the justice precinct is wholly contained or in a county in which the justice precinct is located.

  

What is a Protest?

The Texas Alcoholic Beverage Code provides opportunities for citizens and government officials to object to the issuance of a license or permit. The agency calls this process a protest.

Most of the grounds for refusal or denial of a license or a permit can be determined by TABC as part of the application process. If legal grounds exist and are found during that process, the applicant may be disqualified.

Some grounds exist for refusal or denial that are subject to interpretation on the basis of the facts involved.

What Role Does TABC Play?

It is the policy of TABC to provide every interested person, including TABC employees, government officials and citizens of Texas, a full and fair opportunity to object to the issuance of an alcoholic beverage license or permit based upon legal grounds established under the Texas Alcoholic Beverage Code or other law.

In service to this policy, TABC establishes a process by which protests to license and permit applications may be resolved in an efficient, timely, and consistent manner, giving due regard to the legal rights and interests of the agency, industry, other government units, and the public.

 

TABC's job is not to take sides but to ensure that applicants meet all qualifications to obtain the license or permit as outlined in the Alcoholic Beverage Code.

Protest Hearings

In this case, protest hearings will be held in Lubbock County. The protesting party will be notified at least 10 days in advance of the time and place of the hearing. The hearing will be held according to the rules of the Texas Administrative Procedures Act, (V.T.C.A., Government Code, §2001 et seq.).

For a liquor permit, a judge designated by the State Office of Administrative Hearings (SOAH) will inform all parties of the time, date, and location for the hearing. The judge will handle all pre-trial matters, make rulings as necessary and conduct the final hearing on its own merits.

For a beer or beer/wine license, the county judge, acting as an administrative law judge, will hold the hearing in the same manner as for permits.

In this case, because TABC will be a neutral party to the protests, both sides will have the opportunity to present evidence to the judge - the protestants and the applicants. A hearing on a single applicant is not likely to last more than a day.

The judge will have up to 60 days to file a ruling (proposal for decision), and then each side will have up to 15 days to file objections, and then another 15 days to respond to the opposing side's objections. TABC Administrator Alan Steen makes the final decision, typically signing an order that concurs with the judge's proposal for decision. Both sides are given 20 days to request a rehearing. If the application is denied and a request for rehearing is denied, the applicant may appeal to district court. If the application is approved and a request for rehearing is denied, there is no opportunity for the protestant to appeal.

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