HOUSTON - The First Court of Appeals today affirmed an order granting a plea to the jurisdiction in a lawsuit brought against the Texas Alcoholic Beverage Commission.
According to the opinion, ASC Beverages (Avo Shopping) wanted to use a warehouse space and fulfillment center for its food and alcoholic beverage delivery service. The property, however, was within 1,000 feet of a school and within a 1,000-foot alcohol-free zone established by a city of Houston ordinance.
Avo Shopping believed that it was nevertheless entitled to both a Package Store Permit and a Retail Dealer’s Off-Premise License because it estimated that no more than 25 percent of its sales would come from the sale of alcohol, and because it would not have a storefront through which the public could enter.
Court records show that the city did not approve the permit. Avo Shopping then sued the TABC, not the city or Harris County. In turn, TABC filed a plea to the jurisdiction, asserting that Avo Shopping had sued the wrong party.
The plea argued that the trial court lacked jurisdiction because Avo Shopping was not challenging any action taken by the TABC, and further argued that a judgment against the TABC cannot be enforced against the city, and the city is not an agent of the TABC for the purpose of certification.
The trial court granted the plea and dismissed the suit with prejudice for want of jurisdiction, the opinion states.
On appeal, Avo Shopping challenged the trial court’s grant of the plea, and argued the merits of its contentions about the exception to the alcohol-free zone.
The 14th Court held that the trial court did not err by granting the plea.
“Avo Shopping has not alleged in its pleading any actions taken by the TABC or by the City of Houston or the county judge that can be imputed to the TABC under the current statutory scheme,” the opinion states. “TABC has not granted or refused either the permit or license that Avo Shopping seeks.
“We conclude that the trial court lacked jurisdiction because there is no current, live, real controversy between Avo Shopping and TABC and nothing to be resolved through judicial relief at this time.”
Appeals case No. 01-22-00297-CV