Untitled Texas Attorney General Opinion

THEA'ITORNEYGENERAL OF TEXAS GROVER SEIJJiFE AUSTIN aa,- -N *-IToRNEY GI3NnmzAl. Honorable Bert Ford, Administrator Texas Liquor Control Board P.O. ~0~~56 -' Austin 1, Texas Dear Sir: Opinion No. O-7477 Re: Under the given facts is the applicant entitled to a package store permit at a certain loca- tion? This acknowledges,receipt of gcur letter of recent date which reads: "Yai will find attached a copy of a letter and a~diagram from Ron: T. A. Hicks, City Attorney, of Wichita Falls, which is self-explanatory. "I. J,iWolfson seeks a Package Store Permit fotia lbcation leas than 300 feet-.frorn7213 Ohio Avenue; which is the entrance to a building where the rear portion of the second story of said buFld- ing is used by a mission, which is more than 300 feet from the main door of the premfses for which a Package Store Permit Is sought. "Under the circumstances, Is I. J. Wolfson entitled to a Package Store Permit?"' Mri,T. A. Hicks letter of October 25, 1946, to you reads : "I have your letter of October 24, 1946 con- ceriiingSection 25A, Page 25, Article 1 of the Texas Liquor Control Act, also the Attorney Gen- eral's.opFnlon of March 19, 1940. "I~~donot believe the oplnLon answers our. question. I. J. Wolfson desires to open a'Package Sttbreat 513 8th Street, as yotiwill~note by the =P. The Chapel we refer to/is located In a bulld- ing 7213 Ohio Avenue being the entrance to a 2-story building. The religious organization as shown by the map enclosed in our former letter is on the second Honorable Bert Ford, page 2 o-7477 floor and In the rear of the building. From the entrance at 7213 Ohlo Avenue leading up a stair way to the second floor and down the hall to the door in which the Mission Is located is some 73 feet. This door and entrance to the Chapel is over 300 feet away, so that would place the Mission more than 300 feet from 513 8th Street, so keep In mind that no portion of the Chapel is on the lower floor. "We conceed that from 513 8th Street to'the opening door of 7213 Ohio Avenue is less than 300 feet, by measuring up stairs and back to the rear of the building on the second floor the Chapel is located more than 300 feet from 513 8th Street. "For instance Is the front door to any buildirig regardless of its height and size the controlling. factor? For example in your City from some point, a package store was within 252 feet of the Little- field Building; say its front door, but up on the 10th story some religious organization rented rooms for a Mission ana by measurements it would be more than 300 feet to their particular location. Would the front door of the Littlefield Building be the controlling factor in'aenying a Package Store Permit or would-it be the distance from the door of the office space used by the Mission?" In the recent case of Stubbs v. Texas Liquor Control Board, 166 S.W. (2d) 178, error refused, the Court of Civil Appeals quoted with approval the following language of 15 R.C.L. 372-373: "In applying the prohibition against sales near churches, great~llberalltg is exercised . . . Any structure used principally for religious wor- 8hiD and Bible study Is Included (within the mean- ing of a church building) although some of its rooms may be used by socletles incidental to the church. D . -' (Words In parentheses and emphasis added). Thus, the question here presented is not one of measure- ment but is rather a question as to whether or not the building In which the Mission Chapel is located Is used principally for religious worship. Such question Is not for this department to pass upon. FOP your information, however, we cite 30 American Jur- isprudence 437: Honorable Bert Ford, page 3 o-7477 "However, the restraint (against liquor sales near churches) is usually held not to apply to places used occasionally for preaching . . . or a building occasionally used for entertainments for the benefit of a church, or to one used by an un- organized body as a mission for Bible study and meetings, partlcularls when most of the building is used for residential and commercial purposes." (Words in parentheses and emphasis added). See also George et al v. Board of Excise of City of Elizabeth, 63 Atl. 870, affirmed in 67 Atl. 599. It Fs, therefore, the opinion of this department that: (1) If the building in question Is used principally for purposes of religious worshlp, then I. J. Wolfson Is not entitled to a package store permit at 513 8th Street. (2) If sala building Is not used principally for pur- poses of religious worship, then I. J. Wolfson Is entitled to a package store permit at 513 8th Street. We trust that the foregoing fully answers your question. Yours very truly ATTORNEY GENERAL .~ OF TEXAS By s/Wllllam E. Stapp WilllainE. Stapp Assistant APPROm NOV 15, 1946 s/Grover Sellers ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman