                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00047-CV


                            PAK-A-SAK, INC., APPELLANT

                                           V.

                           CITY OF PERRYTON, APPELLEE

                          On Appeal from the 84th District Court
                                 Ochiltree County, Texas
             Trial Court No. CV-13743, Honorable William D. Smith, Presiding

                                    November 6, 2014

                                       OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      This is an appeal from an order denying an application for a license to sell

alcoholic beverages at a Pak-a-Sak convenience store location in the City of Perryton

(the City). The denial was premised on a municipal ordinance which prohibits the sale

of alcohol within a “residential area” of the City.     Pak-a-Sak contends that 1) the

ordinance unconstitutionally grants authority to the City in excess of that granted by the

legislature under the Texas Alcoholic Beverages Code, 2) the ordinance is
unconstitutionally vague and ambiguous, and 3) there is no substantial evidence to

support a finding that Pak-a-Sak’s location is in a residential area. We affirm.

        On April 16, 2013, the City enacted Ordinance 1000-13 which states: “It shall be

unlawful for any person to sell, dispense or deliver, or cause to be sold, dispensed or

delivered, any beer, liquor, or any other intoxicating beverage within a residential area in

the city.”1 The ordinance was enacted under the authority of § 109.32 of the Texas

Alcoholic Beverage Code which provides that an incorporated city may prohibit the sale

of beer in a residential area. TEX. ALCO. BEV. CODE ANN. § 109.32 (West 2007). Neither

the statute nor the ordinance define the phrase “residential area.” On June 3, 2013,

Pak-a-Sak submitted an Application for Wine and Beer Retailer’s Off-Premises Permit

(BQ license) to the City for its store at 522 SW 9th Avenue in Perryton.2                           The

application was denied. That decision was appealed to the county court which upheld

it. It was then appealed to the district court which did the same.

        Ultra Vires

        As previously mentioned, Pak-a-Sak initially contends that the City exceeded

legislative authorization by failing to define “residential area.” That is, “[b]y failing to

objectively define ‘residential area,’ the City [allegedly] acted outside the scope of its

authority.” Appellant continues by arguing that the “Texas Legislature did not provide

municipalities with unlimited authority to determine when its actors may prohibit the sale

of alcohol . . . once a county has voted under a Local Option Election to allow the sale




        1
            There is no zoning in Perryton.
        2
          This occurred after a general election on May 11, 2013, in Ochiltree County permitting the sale
of alcoholic beverages

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of alcohol, the municipality may only limit the sale in certain circumstances . . . [which]

circumstances are outlined in the Texas Alcoholic Beverages Code.”

       The circumstance alluded to is specified in § 109.32 and states that “[a]n

incorporated city or town by charter or ordinance may . . . prohibit the sale of beer in a

residential area.” TEX. ALCO. BEV. CODE ANN. § 109.32(a)(1) (West 2007) (Emphasis

added). The portion of the ordinance adopted by the City and attacked at bar reads: “[i]t

shall be unlawful for any person to sell, dispense or deliver, or cause to be sold,

dispensed or delivered, any beer, liquor, or any other intoxicating beverage within a

residential area in the city.”        (Emphasis added).         As can be seen, the limitation

mentioned in the statute is identical to that specified in the ordinance. Moreover, and

contrary to the insinuation of Pak-a-Sak, § 109.32 does not direct the municipality to

further define the phrase “residential area.”           Nor did appellant cite us to authority

expressly imposing such an obligation on the City. Given that the ordinance simply

reiterated the limitation specified by the statute, we cannot say that the City acted

outside the scope of its authority by enacting the ordinance.

        Void for Vagueness

       Next, we address Pak-a-Sak’s constitutional complaint.                  It believes that the

phrase “residential area” is ambiguous and susceptible to ad hoc interpretation and

application.    That purportedly being so, and because the City failed to provide

guidelines explaining what it meant by or otherwise define the phrase, the provision is

impermissibly vague and, therefore, unconstitutional because it violates due process.3

We disagree.


       3
          Pak-a-Sak does not challenge § 109.32(a)(1) of the Beverage Code as unconstitutionally vague,
only the ordinance.

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       The same rules apply to the construction of ordinances as to the construction of

statutes. Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002);

Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (1958). Furthermore, we generally

presume that an ordinance is valid, and the party challenging it has the burden to prove

otherwise. Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d at 431; Brookside

Village v. Comeau, 633 S.W.2d 790, 792-93 (Tex. 1982).

       Next, a statute or ordinance is unconstitutionally vague if it fails to give fair notice

of what conduct may be punished or it invites arbitrary and discriminatory enforcement

by failing to establish guidelines. Commission for Lawyer Discipline v. Benton, 980

S.W.2d 425, 437 (Tex. 1998).       That is, it may not be so vague and standardless as to

leave a governing body free to decide, without any legally fixed guidelines, what is

prohibited in each particular case. Lindig v. City of Johnson City, No. 03-11-00660-CV,

2012 Tex. App. LEXIS 9563, at *12 (Tex. App.—Austin November 14, 2012, no pet.)

(mem. op.). If persons of common intelligence are compelled to guess at its meaning

and applicability, then principles of due process will not let it stand. Id. at *12-13.

       Yet, it should be remembered that statutes deal with “untold and unforeseen

variations in factual situations, and the practical necessities of discharging the business

of government inevitably limit the specificity with which legislators can spell out

prohibitions.” Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980). Thus, no

more than a reasonable degree of certainty can be demanded. Id.; Vista Healthcare,

Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264, 273 (Tex. App.—Austin 2010, pet. denied).

Nor do the words of a statute fall short of providing a reasonable degree of certainty

because they are undefined. Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d at



                                              4
273 (stating that a “law is not unconstitutionally vague merely because it does not define

words or phrases”).      Nor does the existence of a dispute as to a law's meaning

necessarily render the provision unconstitutionally vague. Id. Again, the verbiage need

only provide a reasonable degree of certainty as to what is proscribed. And, the test “is

relaxed” when the conduct being regulated is not normally considered constitutionally

protected. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-

99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating that “[t]he degree of vagueness that

the Constitution tolerates—as well as the relative importance of fair notice and fair

enforcement—depends in part on the nature of the enactment. Thus, economic

regulation is subject to a less strict vagueness test because its subject matter is often

more narrow . . . .”); accord Commission for Lawyer Discipline v. Benton, 980 S.W.2d at

437-38 (stating that “[t]he vagueness doctrine requires different levels of clarity

depending on the nature of the law in question. Courts demand less precision of

statutes that impose only civil penalties than of criminal statutes because their

consequences are less severe.”).4

       We also mention that this requirement for a reasonable degree of certainty can

be provided through the use of ordinary terms having adequate interpretation in

common usage and understanding. Lindig v. City of Johnson City, 2012 Tex. App.

LEXIS 9563, at *13 (stating that “the reasonable-certainty requirement ‘does not

preclude the use of ordinary terms to express ideas which find adequate interpretation

in common usage and understanding’”); Webster v. Signad, Inc., 682 S.W.2d 644, 647

(Tex.—App. Houston [1st Dist.] 1984, writ ref’d n.r.e). Simply put, where the statute


       4
           Pak-a-Sak does not suggest that the opportunity to sell beer in Perryton, Texas, is of
constitutional dimension.

                                               5
fails to define pivotal words contained therein, reference to their common usage and

understanding can supply the requisite certainty.

       Also of note is that a law is not automatically vague merely because difficulty is

experienced in determining whether certain marginal conduct falls within its scope.

Pennington v. Singleton, 606 S.W.2d at 689. This is of import because in assessing

whether a statute is void for vagueness when First Amendment freedoms are not

implicated, we examine the matter “‘in light of the facts of the case at hand.’” Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 495 n.7. In such circumstances,

a facial challenge has merit “only if the enactment is impermissibly vague in all of its

applications.” Id. at 494-95; accord In re Commitment of Fisher, 164 S.W.3d 637, 654-

55 (Tex. 2005) (stating that to “prevail on his facial vagueness challenge . . . [one] bears

the heavy burden of showing that the Act is unconstitutional in every possible

application”). A complainant who engages in some conduct that is clearly proscribed

“cannot complain of the vagueness of the law as applied to the conduct of others.”

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 495.       “A court should

therefore examine the complainant’s conduct before analyzing the other hypothetical

applications of the law.” Id.

       Here, the trial court determined that the term “residential area” had a “definite

meaning that is objectively determinable in its application.”     Indeed, this conclusion

appears supported by various definitions of the term proffered by the City’s witnesses.

For instance, the mayor testified it is a “geographic area of houses in which people live”

or a “geographic area consisting primarily of homes where people live.” A city council

member testified that a residential area is “anywhere there was a grouping of houses” or



                                             6
a “geographic area primarily occupied by houses.” The city manager defined it as an

“area where people reside” or an area that “primarily consists of houses” regardless of

use. Common in each is the notion that the area must generally consist of abodes

wherein people live.

       To the foregoing, we add that the common meaning of the term “residential”

describes a location at which people live. Indeed, it has been defined as a location

“containing mostly homes instead of stores [or] businesses,” “used as a place to live,” or

“of or relating to the places where people live.” See MERRIAM-WEBSTER DICTIONARY,

http://merriam-webster.com (last visited Nov. 6, 2014).      In turn, “area” describes, in

common parlance, “a part or section within a larger place.” Id. When those definitions

are combined in the context of the statute and ordinance at issue, it is quite reasonable

to construe the phrase “residential area” to encompass, at the very least, a section of

the city wherein people primarily maintain homes and live.         Stated differently, it is

reasonably certain that what constitutes a “residential area” includes a neighborhood

wherein people primarily live and maintain homes.         Admittedly, the margins of the

phrase may be difficult to determine. Whether they would encompass an industrial

region wherein one or two people maintain a house is subject to reasonable debate.

But, again, we are to analyze the attack “‘in light of the facts of the case at hand.’” And,

the “facts at hand” do not depict such an area.

       Instead, the record shows that the Pak-a-Sak store in question is surrounded by

houses and people living in them. One need only look at the pictures of the location

and its neighbors to see that. While some businesses (e.g., a beauty parlor, a dog

grooming business, and an auto mechanic shop) may be operated within various of



                                             7
those homes, people still primarily live within the neighboring environs of that Pak-a-

Sak.5 Given this, we have before us a circumstance encompassed by a reasonable

interpretation of what constitutes a “residential area.” Selling beer from the Pak-a-Sak

here would be conduct clearly proscribed by the ordinance; it would be conduct clearly

within the common meaning of “residential area,” that is, a section of the City wherein

people primarily maintain homes and live. So, we cannot say that the ordinance has

been shown to be vague in all of its applications as required, and we overrule the issue

before us given the particular circumstances at bar.

       Substantial Evidence

       Finally, Pak-a-Sak argues that “the City was required to establish by substantial

evidence that the location in question met the requirements of the regulation it intended

to enforce” and that it “did not meet their burden of admitting substantial evidence of

Pak-a-Sak’s location being within a ‘residential area.’” We overrule this issue as well.

       A decision has the support of substantial evidence when the evidence of record,

viewed as a whole, is such that reasonable minds could have reached the same

conclusion. Texas Alcoholic Beverage Comm'n v. Sierra, 784 S.W.2d 359, 360 (Tex.

1990); Melmat, Inc. v. Texas Alcoholic Beverage Comm’n, 362 S.W.3d 211, 214 (Tex.

App.—Dallas 2012, no pet.); accord Texas Alcoholic Beverage Comm’n v. I Gotcha,

Inc., No. 07-05-0411-CV, 2006 Tex. App. LEXIS 6733, at *6-7 (Tex. App.—Amarillo July

28, 2006, pet. denied) (mem. op.) (stating that substantial evidence exists if the

evidence is such that reasonable minds could have reached the same conclusion).

And, the quantum of evidence need only be more than a scintilla. Texas Alcoholic

Beverage Comm’n v. I Gotcha, Inc., 2006 Tex. App. LEXIS 6733, at *6.
       5
           At least one witness also described the neighborhood as primarily occupied by houses.

                                                    8
        As we observed in our discussion of the issue immediately preceding this one,

the record contains more than a scintilla of evidence illustrating that Pak-a-Sak was

located in a “residential area.” Consequently, the decision by the City of Perryton to

deny the permit has the support of substantial evidence.

        Having rejected each issue proffered by Pak-a-Sak, we affirm the order of the

trial court.



                                                      Brian Quinn
                                                      Chief Justice




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