Before March 14, 2018, anyone could file a protest against an application for a TABC license or permit for any reason, and the TABC would set the matter for hearing with the State Office of Administrative Hearings (SOAH). However, on March 14, 2018 the TABC substantially limited the circumstances in which an application can be protested through its order in Tex. Alcoholic Beverage Comm’n, Renewal Application of Core-Mark Midcontinent, Inc..
In its Order granting Core-Mark’s renewal permit after one of Core-Mark’s competitors protested its renewal application, the TABC stated:
“The Code (referring to the Texas Alcoholic Beverage Code) does not give a member of the general public the right, either an individual or a company, the right to protest all applications for licenses or permits. Instead, the Code provides for discrete circumstances when the public can file a protest. . .”
Who can protest a TABC application?
After the TABC’s change in position regarding protests that resulted from the Core-Mark decision, the Texas legislature implemented changes to the Texas Alcoholic Beverage Code specifying which members of the public and/or government officials are eligible to protest original and renewal TABC applications.
The following government officials are eligible to protest TABC applications in areas they represent:
A member of the public is eligible to protest an application in the following circumstances:
(1) an original mixed beverage permit, private club registration permit, or wine and beer retailer’s permit if a sexually oriented business is to be operated on the premises to be covered by the permit;
(2) any renewal of a mixed beverage permit, private club registration permit, or wine and beer retailer’s permit if a sexually oriented business is to be operated on the premises to be covered by the permit and a petition is presented to the commission requesting a hearing which is signed by 50 percent of the residents who reside within 300 feet of any property line of the affected premises;
(3) a private club registration permit or a permit authorizing the retail sale of alcoholic beverages for on-premises consumption if the person resides within 300 feet of any property line of the premises for which the permit is sought; and
(4) a mixed beverage permit or a wine and beer retailer’s permit in a municipality with a population of 1,500,000 or more if:
(A) any point of the property line of the premise is less than 300 feet from the nearest point on a property line of a residence, church, school, hospital, day-care facility, or social service facility, as measured in a straight line; and
(B) 75 percent or more of the permittee’s actual or anticipated gross revenue is from the sale of alcoholic beverages.
If an eligible person protests a TABC application, will a hearing automatically be set with the SOAH?
Not necessarily. After a protest is filed by an eligible person, the TABC conducts its own investigation and evaluates the circumstances surrounding the protest.
If the TABC determines that no reasonable grounds exist for the protest, it will issue the TABC permit without submitting the protest to a hearing with the State Office of Administrative Hearings (SOAH).
On the other hand, if the TABC determines that there are reasonable grounds for the protest, the TABC will refer the matter to SOAH for a hearing before an administrative law judge.
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