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County Judge Ed Emmett grants Montrose H-E-B beer and wine license, rules that protesting school not a school

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The Montrose Market H-E-B has been without a beer and wine license since it opened Nov. 16. Photo by Clifford Pugh
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The building on the right hand side on Sul Ross is the crux of the issue. Map via St. Stephen's Episcopal Church & School
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Montrose residents will soon be able to buy beer and wine at their shiny new H-E-B. The fight appears to be (almost) over in the dispute between Montrose Market and St. Stephen's Episcopal School, which CultureMap reported on Monday.

County Judge Ed Emmett signed off later that day on a ruling by his legal counsel, Bill Henderson, to grant the grocer its long-awaited beer and wine license. (Despite the title, Emmett is not a judge, nor even a lawyer. But all local beer and wine licenses, in contrast to hard liquor licenses, go through the county judge's office, although the Austin-based TABC may make recommendations.)

Now the school has 20 days to file for another hearing, although that request can be denied by the TABC.

 Although the beverage code allows for a variance that can increase the required distance from a church or school to 1,000 feet, that's not how H-E-B won out. 

 All signs point to smooth sailing for H-E-B, as it's worth noting that the TABC opted not to join in the protest that St. Stephen's filed on Oct. 26 — meaning the TABC saw no reason to protest the license (which it historically has no reservations about doing). So it seems unlikely the alcohol and beverage commission will commit to a whole other hearing if they didn't throw their weight behind the first protest.

The crux of the issue boils down to this: St. Stephen's uses a building at 1755 Sul Ross, just off Woodhead, for a classroom and argues that since the building is within 300 feet of the H-E-B property line, it violates a section in the alcoholic beverage code that prohibits the sale of alcohol to be consumed on-site within 300 feet of a church or school. (H-E-B plans to serve beer and wine at its Cafe on the Run to be consumed on the property, similar to the Bayou Bar at the Montrose Whole Foods.)

Although the beverage code allows for a variance that can increase the required distance from a church or school to 1,000 feet, that's not how H-E-B won out. Rather, the county judge's office found that "[1755 Sul Ross] is not a private school as that term is defined in the Alcoholic Beverage Code."

The code defines a "private school" as "a private school, including a parochial school, that: (1) offers a course of instruction for students in one or more grades from kindergarten through grade 12; and (2) has more than 100 students enrolled and attending courses at a single location." St. Stephen's Sul Ross building houses fewer than 100 students.

St. Stephen's has also argued that the building on Sul Ross is part of a contiguous campus that spans Woodhead (and thus the total number of enrolled students should be counted). Hindering this argument is the fact that when it comes time to pay taxes, the Harris County Appraisal District does not consider the buildings contiguous. The middle school classrooms located at Sul Ross are in a different class and have a different tax account than the rest of the campus on the east side of Woodhead.

If the county judge had found that St. Stephen's Sul Ross building constituted a private school, the decision continues, the license would have been rejected. But "the place and manner in which [H-E-B] will conduct its business does not warrant the refusal of a permit based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency."

Calls to St. Stephen's attorney, Ian Cain, were not immediately returned. When asked if they planned to file for another hearing, St. Stephen's spokesperson Kat Yoerg told CultureMap "beyond public record, we have no comment."

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