                               MEY         GENE
                        OF      EXAS




M r . Coke R. Stevenson, Jr.         Opinion No. W- 1433
Administrator
Texas Liquor Control Board           Re:    Whether the Texas Liquor
Austin, Texas                               Control Board should can-
                                            cel the permit granted
                                            to Claude D. Neeley by
Dear Mr. Stevenson:                         virtue of the stated facts.
          You asked this office an opinion on the following
questions:
          "1 . Should the Texas Liquor Control Board
     cancel the permit granted to Claude D. Neeley
     for the 'FM Road 369' premises in view of the
     adoption of Ordinance No. 1974 by the City of
     Vichita Falls and the annexation thereafter of
     the area in which permit is located?
          "2 . ,Couldthe Texas Liquor Control Board
     cancel the permit or license granted to Claude
     D. Neeley for the 'FM Road 369%premises in view
     of the adoption of Ordinance No. 1974 by the
     City of Wichita Falls and the annexation there-
     after of the area in which such permit is located?"
          On October 25, 1961, Claude D. Neeley filed an ori-
ginal application for a retail dealer's off-premise license
with the County Judge of Wichita County for the premises at
"FM Road 369". On November 14, 1961, the County Judge of
Yichita County refused to approve the application. On the 28th
day of November, 1961, in Cause No. 69012-A, which was an appeal
from the County Judge's refusal to approve the application,
the 30th District Court of Wichita County, Texas, set aside the
ruling of the County Judge refusing to approve the application.
Thereafter, on December 7, 1961, in pursuance of the judgment
entered in Cause No. 69012-A in the 30th District Court of
Wichita County, Texas, the Texas Liquor Control Board issued
a retail dealer's off-premise license to Mr. Claude D. Neeley
for the "FM Road 369" premises. At the same time, the Texas
Liquor Control Board also issued a package store permit to Mr.
Claude D. Neeley for the "FM Road 369” premises.
            The "FM Road 369" premises are within an arfflre-
cently annexed to the City of ;lichitaFalls, Texas. This
annexed area was adjacent to the City of lfichitaFalls before
the annexation.    It had been under first reading for some time
Mr . Coke R. Stevenson, Jr., Page 2 (W-1433   )

prior to the action of the County and District Judges of
        County, Texas, set out above and on November 13,
'cfichita
1961, the area was actually annexed to the City of :;,JichLta
Falls, Texas.
          The "FM Road 369" premises are in Precinct N:;.
1 of Wichita County, Texas, and the area was "wet" when
annexed by Wichita Falls.
          On October 21, 1946, the City of Wichita Falls,
Texas, adopted Ordinance No. 1416 which provided that "no
spiritous, vinous or malt liquors" shall be sold within
the corporate limits of the City of Wichita Falls, Wichita
County, Texas, except within certain limits as set out in
that particular ordinance. Section 4 of this ordinance
further provided that the ordinance should not apply to
wholesale dealers, "who shall sell at wholesale to retail
dealers only and to no other person, firm or corporation."
          On January 27, 1947, Ordinance 1425 was adopted
which amended Section 1 of Ordinance No. 1416 providing
that "no spiritous, vinous or malt liquors" should be
sold within the corporate limits of the City of l+Jichita
Falls, Texas, except within the described area. The
amendment of course changed the area.
          On October 29, 1951, Section 1 of Ordinance No.
1416 was again amended by amending Section 4 by providing
that the ordinance should not apply to wholesale dealers,
"who shall sell at wholesale to retail dealers only and to
no other persons, firm or corporation; that this ordinance
shall not apply to retail dealers who are in business as a
package store at the same location on January 1, 1951, and
rwhoheld a legal package store permit or retail dealer's
off-premise license on January 1, 1951." This amendment
was to take care of an area recently annexed to the city.
          On November 14, 1955, Ordinance 1740 was adopted
which prevented the delivery of "spiritous, vlnous or malt
liquors" except in the area set out therein.
          On January 27, 1958, an ordinance was adopted
amending Ordinance No. 1416 as amended by Ordinance 1425
providing that "no spiritous, vinous or malt liquors"
could be sold within the corporate limits of the city of
?JichltaFalls except in the described areas. This amend-
ment allowed the sale of spiritous, vinous or malt liquors
within the site known as "Weeks Park Clubhouse".
.    *




    Mr. Coke R. Stevenson, Jr., Page 3 (WW-1433 )

              On April 13, 1959, Ordinance No. 1830 was adopted
    amending Section 4 of Ordinance No. 1416 and Section 1 of
    Ordinance 1579 providing that Ordinance No. 1416 and Or-
    dinance No. 1579 "shall not apply to wholesale dealers,
    who shall sell at wholesale to retail dealers only and to
    no other person, firm or corporation; that Ordinance No.
    1416 and Ordinance No. 1579 shall not apply to retail
    dealers who are in business as a package store at the
    same location at the time any area is annexed to and
    included within the corporate limits of the City of Wichita
    Falls, Texas, and who held a legal package store permit
    and/or retail dealer's off-premise license, at the time
    of such annexation."
              On January 11, 1960, Ordinance No. 1884 was
    adopted amending Section 4 of Ordinance No. 1416 so as to
    provide that Section 4 of 1416 would read as follows:
               "In recognition of the principle of continu-
         ance of nonconforming use, when an area is annexed
         to the city limits of the City of Wichita Falls,
         Texas, that contains businesses operating under
         package store permit, a retail dealer's on-premise
         license  or retail dealer's off-premise license as
         defined by the Texas Liquor Control Act, those
         existing businesses shall be allowed to continue
         in the same location with the right to transfer
         said permit for license.
              "That Ordinance No. 1416, as amended, shall
         not apply to liquor wholesalers with the following
         types of licenses:
              "General Distributorls License, Local Dis-
         tributor's License, Branch Distributor's License
         or Wholesale Permits, as the same are defined by
         the Texas Liquor Control Act."
               On May 9, 1960, Ordinance No. 1425 and Ordinance
    No . 1796 were amended by Ordinance No. 1907. Section 1 of
    Ordinance No. 1425 was amended to Include an additional
    area. To "establish a liquor zone in which liquor may be
    legally sold within the City of Wichita Falls and adding
    to that area a portion of land which is described in the
    ordinance."
              On December 18, 1961, Ordinance No. 1974 was
    adopted amending Section 4 of Ordinance No. 1416 so as to
    provide as follows:
Mr. Coke R. Stevenson, Jr., Page 4 (Ww-1433 )

          "In recognition of the principle of con-
     tinuance of nonconforming use, when an area is
     annexed to the city limits of the City of Wichita
     Falls, Texas, that contains businesses which
     have been operating in said area for a period
     of no less than twelve months under a package
     store permit, a retail dealer's on-premise li-
     cense or a retail dealer's off-premise license
     as defined by the Texas Liquor Control Act,
     those businesses which have existed for such
     period of time shall be allowed to continue in
     the same location with the right to transfer
     said permit or license.
          "That Ordinance No. 1416, as amended, shall
     not apply to the following types of licenses:
          "General Distributor's License, Local Dis-
     tributor's License, Branch Distributor's License
     or Wholesaler's Permits, as the same are defined
     by the Texas Liquor Control Act.
          "Section 2, Ordinance No. 1884 and all other
     ordinances in conflict herewith are hereby ex-
     pressly repealed."
          Nowhere in any of the ordinances set out above,
copies of which were supplied to this office by A. L. Fitts,
City Clerk, is any provision made restricting the sale of
beer. The ordinances all cover "spiritous, vinous or malt
liquors" with the exception of Ordinance No. 1907, which
speaks of "a liquor zone." Li uor is defined in the Texas
Liquor Control Act, Article 662 -3a(5), V. P. C., as follows:
          "'Liquor' shall mean any alcoholic bever-
     age containing alcohol in excess of four (4) per
     centum by weight, unless otherwise indicated.
     Proof that an alcoholic beverage is alcohol,
     spirits of wine, whiskey, liquor, wine, brandy,
     gin, rum, ale, malt liquor, tequila, mescal,
     habanero, or barreteago, shall be prima facie
     evidence that the same is liquor as herein de-
     fined."
          Beer is defined in Article 667-1(b) as follows:
          "The term 'beer' means a malt beverage con-
     taining one-half of one per cent (1%) or more of
     alcohol by volume and not more than four (4) per
I$?
 _’. Coke R. Stevenson, Jr., Page 5 (W-1433   )

     centum of alcohol by weight, and shall not be
     inclusive of any beverage designated by label
     or ctherwise by any other name than beer."
          It is therefore the opinion of this office that
all ordinances set out above of the City of Wichita Falls,
Texas, apply only to liquor having 496or more by volume of
al:ohol, and does not include beer as defined in the Te::&s
Lic;uorControl Act. We therefore hold that the Texas Liquor
:ontrol Board, as you point out, was bound "to issue the
license . . ." as a result of the judgment of the District
Court and that there was no restriction on the issuance of
sue!?license because the city has placed no restriction
o-nthe sale of beer anywhere within its limits.
          Under the facts stated, the "FM Road 369” location
is included within the area covered by Ordinance Nos. 197Lk
and 1884. The package store permit was issued by the Texas
Liquor Control Board on December 7, 1961; however, it is
noted in your letter that the area was annexed to the City
of Wichita Falls, Texas, on November 13, 1961. At the time
of this annexation, Ordinance No. 1884, approved on Janu-
ary 11, 1960, was in effect. Under this ordinance, a paclc-
age store permittee and a retail dealer off-premise licensee
could continue .tooperate if the business was in existence
at the time of the annexation. Under the facts outlined in
vour letter, Mr. Neeles was not in business at that time.
herefore, he could ha;e had no "vested right" to such busi-
ness. A city can by its zoning regulations restrict the
sale of alcoholic lio;uorto certain areas within the city.
Louder v. Texas Liquor Control Board, 214 S.V.2d 330 (Civ.
‘1pp.1    .
          Inasmuch as the package store permit expired
August 31, 1962, and,under the cities' zoning ordinances,
cannot be renewed .thequestion concerning its cancellation
is moot.
                       SUMMARY
          The Texas Liquor Control Board should not cancel
     the Retail Dealer's Off-Premise License heretofore
     issued to Claude D. Neeley by virtue of the circum-
     ;tan,zec
           I and facts surrounding its issuance.
Mr . Coke R. Stevenson, Jr., Page 6 (W-1433   )




                                    Norman V. Suarez
                                    Assistant
NVS:nss
APPROVED:
OPINION COMMITTEE
'd.V. Geppey'c,Chairman




RFXIE':!ED
         FOR TKE ATTORNEY GENERAL

BY: Leonard Passmore
