[Pritable Version]

In 1990 I bought a convenience store named Handy Mart at 307 Ninth Street in Terrell, Texas from Judy and Stewart David. They had owned Handy Mart for 10 years. The property however had been leased from Grady Lawson with whom I signed a lease. I inherited a fine crew from Stewart and Judy which included Winston Smith, Ronnie Britton and Dutch Massey who were with me from the beginning to the end and for nearly 10 years things went pretty well.

My father died in 1997 and I began to think of selling the store. I asked Grady if he would consider re-leasing to someone else if I could find a buyer. He responded that he did not want to lease to anyone else but he would be willing to buy me out. He offered to pay me for the inventory and take over the remaining balance on what I owed the Davids. This amounted in total to about $65000.00.

I had spoken with a business broker named Ivan Burkheimer whom I had known for some time and inquired as to what Handy Mart would be worth. After he looked at the sales figures he estimated it to be marketable at around $120,000. This was for the business only, not the property. Well, Grady didn’t see it that way. He had no concept of what goodwill was with relation to the value of a business and he stayed firm on his offer of $65,000.

He did offer to sell me the property at the time for $100,000. After checking around I couldn’t find anyone who would say it was worth much over half that. The building itself is a frame building which was added on to the house that stands there and was built somewhere in the 1950’s. Grady and I had talked about tearing the existing building down and putting up a new one years before. The problem with the building was it was so old it wasn’t tight enough to keep dust or bugs out. You could dust the shelves one morning and by afternoon they needed dusting again. The fight against the roaches was also an ongoing problem. We had exterminators come by regularly but they could only slow down the bugs and never get rid of them. With all this I just couldn’t justify the $100,000 price Grady had quoted.

I was in a fix. I had put in a lot of time and work at Handy Mart and it would be a shame to just walk away with nothing after 10 years so I began to explore other options. There was a newer building right beside us that was owned and had been built by George Calvert in 1988 for use as a convenience store. The convenience store only lasted a couple of years and while I was at Handy Mart he had it leased to a number of different people for a number of different business purposes. It was a large metal building and would make be a big improvement over what I was leasing at the time.

I had heard rumors that the store had been turned down for a beer and wine permit before. I asked George about this and he said no one had ever applied for a permit at that location. I later contacted the Texas Alcoholic Beverage Commission to find out how many times a permit had been applied for. Until I applied in 2000 there had been no prior applications. I also talked to the TABC representative in Terrell, Tim Maloney, to see if I would be able to get a permit at the location George Calvert owned. Maloney said there was no reason the state would object to a beer and wine permit at that location but he could not say if the county or city would have any objections as they all needed to approve any application that is submitted. With that I got copies of the state code that would apply from the TABC office in Dallas and copies of the city code and statutes that would apply from the Terrell City Managers office. After checking things out it was clear there were no restrictions to prevent someone from obtaining a beer and wine permit at the location in question, 305 Ninth Street.

I continued to investigate the possibility of securing a permit in late 1997 through early 1998. I sent a letter to Mary Gayle Ramsey, the city attorney, asking if a beer and wine permit at 305 Ninth Street and another location I was considering nearby would be in violation of any city ordinances. I first sent this letter in January of 1998. I never received a reply. I talked to her secretary a number of times and she assured me she had received the letter and it was on Ramsey’s desk. I faxed a second letter in early February just to make sure she had it. I never received a response. Her secretary finally told me Ramsey had told her they “don’t do that sort of thing.”

I mentioned something about a lawsuit earlier. Ramsey was deposed in a suit I brought and lost against the city. In her deposition she was shown a copy of the letter I sent her and the one I faxed to her. She denied having ever seen either before. The calls and faxes I made to her office were long distance from me and my phone bills show phone calls to her phone and fax during this time period.

Here’s a copy of a couple of my phone bills.

Winston Smith was my store manager at Handy Mart. After we received the “no comment” from Ramsey he made some calls to city hall. He talked to city secretary John Rounsavall and he confirmed there were no city ordinances that would prevent a beer and wine permit from being obtained at 305 Ninth Street. John Rounsavall was also deposed for the lawsuit mentioned earlier. During his deposition he swore under oath he did not speak with Smith or say the permit would be obtainable.

Maybe John R. is telling the truth but I just don’t think Winston made it up. I still remember when he called me. He said, “John Rounsavall says a beer and wine permit is OK at 305 Ninth.” To which I replied, “Who’s John Rounsavall?” That was the first time I ever heard the name. Winston replied it was the city secretary so I thought OK, he should know what he’s talking about. This is good news.

We continued operating at 307 Ninth, the original location. In 1999 I again talked to George Calvert about the building at 305 Ninth next door. He said he had tenants but wasn’t sure if they planned on staying. He would be willing to sell the property to me if they moved for $100,000.

I again talked to Grady Lawson about selling out to him or buying the property. He still did not want to pay but about half what the business was worth but he did change the price on what he would take for the property. He had now moved the price up to $150,000. He also said he would be willing to re-lease to me but the rent would double.

As I thought about the two offers it was an easy decision as to which one to pursue. It looked like the people would be leaving the Calvert building by the end of the year so I began to plan for what it would take to move next door. There were some questions I had with the lease and I contacted a local attorney, R.B. Poole, and sent him a letter asking him to clarify just exactly what I could and could not take with me.

He looked it over and didn’t really give me a response. As I remember he said something like the questions I had could go either way and he could not definitively tell me what I wanted to know.

In December of 1999 I talked to George Calvert and found out the people leasing his property were moving out. We agreed I would buy the building as soon as I found out for sure I could get a beer and wine permit.

On January 6, 2000 I went to Joe Labarba Permit Service in Dallas and completed the paperwork for a beer and wine permit for the location at 305 Ninth.

On January 11, 2000 the City of Terrell issued me a certificate for a beer and wine permit. We received this on January 12. Winston Smith called me when it came in the mail and I immediately called George Calvert and we finalized the agreement on the property purchase.

Here’s a copy of the permit.

In January Lawson would come into the store nearly every day and ask Winston various questions about moving next door. Lawson insisted we could not sell beer next door and said if we tried to he would “be the first one up there to fight it” and he would “fight it as hard as I can.” I believe late January or early February is when he started to go up to city hall quite frequently. During his visits he met with city attorney Mary Gayle Ramsey, city secretary John Rounsavall, and TABC rep Tim Maloney.

I do want to take time here to thank my staff. Lawson was planning on keeping the store open as it was and assuming ownership with a partner. He tried to get the people working for me to leave me and work for him. No one accepted the offer. I really appreciate that more than I can put into words.

Lawson was also deposed in the lawsuit I brought against the city. During his deposition taken in October of 2001 Lawson admitted he saw Rounsavall at least 2 times and Ramsey at least 2 times during this time period and talked about beer and wine permits for 305 and 307 both times. He stated he told them he (Jon Beeler) shouldn’t be able to get a permit at 305 and “they may be setting theirselves up for a lawsuit if they give him one.” Lawson also admits to speaking with TABC rep Maloney about the permit and why it was allowed.

Ramsey and Rounsavall also admitted during their depositions that they spoke with Lawson about the permits. Each of them had at least one conversation with Lawson before any questions or delays were brought up regarding my beer and wine permit.

On February 8 a little before noon I met with Maloney (Terrell TABC rep) to turn in my old permit and get a temporary one till the new one arrived. I mentioned I would like to get the permit to Austin as soon as possible and asked if I could speed it up if we sent it overnight. He told me if I got a stamped overnight envelope from the Post Office he would mail it after he got back from lunch. He went to lunch. I went to the Post Office, got the stamped envelope, and slid it under his door like we had talked about. He did not send it and did not make any effort to notify me that he failed to mail it. I assumed he sent it that afternoon. This is a good lesson. Never assume anything.

We were planning on moving around the first of March.

February 24 I called Joe Labarba Permit Service who had handled the permit paperwork for me. It had been long enough we should be getting the permit back from the state and I wanted to check on it. They told me the TABC did not have my application.

Since I thought the app got sent to Austin on Feb. 8 I called up state senator David Cain’s office and state rep Betty Brown’s office to see if they could help find the app. Remember, I was under the impression the application got overnighted to Austin on February 8.

On February 28 or 29 I spoke with Ian at Senator Cain’s office and found out the application was being held up by the Terrell city attorney because of a “proximity issue.” It is worth noting that up until the time Grady Lawson met with Mary Gayle Ramsey and John Rounsavall the application process went smoothly. The application was submitted and a certificate was issued by the city on January 11. Sometime between the time Grady spoke with Ramsey and Rounsavall and February 8 the city began to try and block the issuance of the permit for 305 Ninth Street, my new location.

Well it was time to find out just what was going on so on March 1 I went to see Terrell city secretary John Rounsavall. He told me the school owns some of the ball field down the street. He also gave me a copy of the city code regarding beer and wine permits
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I then went to see TABC rep. Maloney to find out why he didn’t mail the app on the 8th like he said he was going to do. He said the city called him and told him to hold it up until they figured out some issues. Now get this, Maloney had my application on his desk when I saw him on February 8 and mentioned nothing about the city objecting to anything. He was going to mail it out in an overnight envelope I had put under his door. The only time someone could have asked him to hold up the application would have been the few hours in the afternoon of February 8. If they told him before he would surely have told me when we met. Wouldn’t he? If they would have told him after the 8th it would be too late as the application would already be in Austin. This seems a great coincidence to me that the city would contact him on the very afternoon he was to send it out. He would not give me a clear answer as to who called him or when they called.

I was never notified by anyone about the application being held up. Maloney knew I was anxious to get the app down to Austin yet he did not let me know it wasn’t going out. Neither Ramsey or Rounsavall contacted me to inform me of any change of position with regards to the city.

I eventually had to hire an attorney, Mike Wortham of Nacol, Wortham and Associates to assist me in my pursuit of a beer and wine permit. He subsequently asked Maloney to send the application to Austin and Maloney refused until the TABC legal department in Austin instructed him to do so.

Next stop was city attorney Mary Gayle Ramsey’s office. She said she was getting ready to go to court so we set an appointment for 10:00 the next morning.

I went to the city manager Gordon Pierce’s office next to talk to him about the situation. His secretary told me I would need to set an appointment. We set one for the next day. Later that morning she called me back at Handy Mart and said we would have to cancel. She told me the city manager couldn’t talk about that and I would need to talk to the city attorney, Ramsey.

Wednesday March 2 came and I was at the store getting ready to go to my 10:00 meeting with Ramsey. Ronnie Britton was working at Handy Mart at the time and decided to come with me. We met with Ramsey in her office and she told us there were some issues she would need to look at. She mentioned an athletic field and a day care facility. This was the first specific objection I was aware of from the city. I asked her when I could find out exactly what the problem was and she said she would probably let me know next week. I told her next week would be fine but I would hate to be waiting a long time to which she replied, “This thing will raise it’s head before that.”

This thing will raise it’s head? What exactly was she trying to say with that statement? There’s more.

She also seemed to have an unusual interest in me taking the name Handy Mart with me when I moved next door. She brought it up out of the blue and after I told her I had bought Handy Mart from Stewart David she said, “That’s between you and Grady Lawson.” This stuck in my mind because it was really no concern of hers and shouldn’t even have been noticed unless of course she had been talking to Grady Lawson.

I asked her “Have you been talking to Grady Lawson?”

“No.” She quickly replied.

During her deposition in October of 2001 she admits to having spoken with
Grady Lawson about the beer and wine permits for the two locations. One time she
even advised him to get an attorney. At least one time was before this March 2
meeting. This would have been when Grady got the ball rolling on the delay. Now why
would she tell me point blank she hadn’t been talking to Grady Lawson when she had?

I did have my copies of the state and city code and went over them with her to hopefully quell any legitimate objections. She made copies of these as well as my contract with George Calvert to buy the property and the permit the city had issued me on Jan. 11. When she was looking this over she asked me something like “Are you saying there may be some liability here?” I replied, “You’d know more about that than me.”

It’s worth noting here that when presented a copy of the contract between
George Calvert and myself during her October 2001 deposition, Ramsey said,
under oath, she had never seen the contract before. She saw it and made a copy of
it. That’s what elicited the liability question from her.

I asked her if the state code conflicted with the city code which one would overrule. She told me whichever is the most strict. That is not correct. I don’t know if she told me that on purpose or just didn’t know the answer. The law is that city’s may make their code less restrictive than the state law but not any more strict if they are going to allow beer and wine sales.
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She mentioned George Calvert had been turned down for a permit there before. I told her he told me he never had. She insisted he had. The city has never been able to produce any paperwork to this effect and the TABC in Austin has no record of a permit being applied for at 305 Ninth Street before mine.

The city code also states “shall be amended to comply with current law.” I asked her what law she was complying with. She said the “state law.” Well if this was the case there would be no conflict between the two. The city code as written does not comply with state law because it is more restrictive than state law therefore it is not enforceable.

After the meeting with Ramsey I contacted my attorney, Mike Wortham, and let him know of the items Ramsey had brought up. Wortham assured me those were not valid issues and he sent a letter to Ramsey explaining why her concerns with a day care facility and an athletic field were not applicable to our situation. Among other things neither are mentioned in the city ordinance. He backed this up with examples of case law. If her concerns were legitimate, this should have ended the delay.

Here’s a copy of the letter he sent;

Wortham called Ramsey’s office and left word for her to call him on March 6, 7 and 8. She did not return the phone calls. She rarely returned any phone calls. He did finally reach her and got to go over the objections with her and they discussed some state law.

On March 8 I went to the Terrell city building inpector’s office and scheduled a Certificate of Occupancy inspection to be done March 9. We were going to have to move the following week because my lease was up, beer and wine or no beer and wine. I planned to go ahead and move because we could still sell groceries, lottery tickets and everything else besides beer and wine. When the permit got approved we could simply add the beer and wine to our sales mix. Either way, we needed the C.O. to legally move in.

On March 9 Wortham got Ramsey on the phone (he called her). She said they were going to do some measuring and she would call when they were done. She hadn’t called the day before because she was “sick”.

It was getting late in the afternoon on the 9th and I decided to go back to city hall to see if they were going to get our C.O. check done that day. I spoke with Dan Gibson in the city building inspector Will Cole’s office. When I asked him about the C.O. check he said he was told to put the inspection on hold and wouldn’t give me a specific reason as to why. He said I would need to talk to Will Cole about it and he wouldn’t be available till the next day.

I do want to say I had spoken with Dan Gibson a couple of times before. He was very helpful with information on permits, requirements, and such. He was one of the few people I dealt with who worked for the city, other than the secretaries, that acted like a normal, decent person. This time when I spoke with him however he seemed uncomfortable and not at all like the times before. Something just didn’t seem right.

On March 10 I went to see Will Cole about the building inspection and find out what the holdup was. He said Ramsey had sent him an e-mail instructing him not to do the C.O. because of the beer and wine permit issue. I explained to him that we weren’t just a beer store, we sold groceries too and the beer and wine permit had nothing to do with selling bread and milk. He agreed and said he would talk to Ramsey.

In the meantime Mike Wortham, my attorney, had called Ramsey and left a message with her secretary to call him. She didn’t.

After meeting with Cole I called Wortham and told him what I had found out about the C.O. delay. He told me to go by Ramsey’s office and ask her to call him. I went by and her secretary told me she had just left and was leaving town for the weekend. It was about 11:00 a.m. and I asked her to have Ramsey call Wortham if she was able to reach her.

I knew Cole needed to talk to Ramsey before he issued the C.O. so I went back over to city hall and found Cole in city secretary John Rounsavall’s office. We began to talk about the C.O. again. He told me the inspection would be done that afternoon but he could not issue me the C.O. until he talked to Ramsey on Monday if it passed. I also mentioned Ramsey was leaving town and had not returned a call from my attorney. I was beginning to get irritated with all this and told them I didn’t want any favors I just wanted everyone to do their job. A lady in the office overheard and said she would go call Ramsey. When she returned she reported that Ramsey had indeed tried to call Wortham and couldn’t reach him.

She did not try to call Mike Wortham’s office. The office was fully staffed that day and I have never called and not spoken to someone. No one in Wortham’s office fielded a call from Ramsey.

In the afternoon the inspection was performed and the C.O. was issued the following Monday, after I went up to Cole’s office to check on it.

On March 14 Wortham called Ramsey and was lucky enough to get her on the phone. She said she would have measurements this week and know what we were in violation of.

In the afternoon Mike received a fax from the city informing us of their protest. This did not give a specific reason informing us what they were protesting. This is around a month after they decided to hold up the application.

Here is the letter I got;

On March 15 I got my copy of the protest letter from the city in the mail. In it it said if you have any questions call the city secretary. I did and John Rousavall, the city secretary, told me the letter was drafted from instructions from the city attorney and if I had any questions I would need to call her. Do you see a pattern here? From Gordon Pierce refusing to talk to me and canceling our appointment on the 1st to Rounsavall now referring me to the city attorney, the idea is to funnel everything to Ramsey, who subsequently won’t return a phone call from a citizen or the citizen’s legal counsel and won’t answer any direct questions. But wait, maybe I should say won’t answer a direct question truthfully.

Around March 15 we filed a an Original Petition for Declaratory Judgment and Injunction. With this we were asking the court to stop the city from withholding it’s certification of my permit and to cause Maloney to deliver the application to Austin.

Ramsey states in her deposition more than once that she had nothing more to do with the city’s position with regards to our permit after March 15. She contends a Dallas law firm more or less took over the case once we filed the motion with the county court. Ramsey never indicated to Wortham she was no longer involved in the case and no one else communicated this to Wortham or myself. She also continued to dictate the city’s actions with regard to the permit.

Wortham did contact the law firm who began handling the March 15 case for the city at one time and received a response that they did not represent the city. Here is the fax Wortham received;

In late March Maloney finally sent the application to the TABC office in Austin. As a result of this the case we filed on March 15 was nonsuited and Nichols, Jackson, Dillard, Hager & Smith were no longer representing the city. Ramsey was in full control.

On March 17 Wortham got a letter from Ramsey saying we were within 1000 feet of Terrell Christian Academy. Remember, in her deposition Ramsey says she had nothing to do with the issue after March 15. This was their second objection. It took them over 5 weeks to figure this out. Wortham immediately sent them a letter explaining the law. If an establishment derives over 50% of it’s revenues from the sale of alcohol it cannot be within 1000 feet of a public school. If less than 50% of revenues come from the sale of alcohol the distance will be 300 feet. Handy Mart is over 800 feet from Terrell Christian Academy. Also note Terrell Christian Academy is not a public school. It is a private school. The 1000 foot restriction does not apply to a private school. On March 21 Wortham also sent Ramsey a letter outlining our beer and wine sales in 1999. Along with the letter the city was also supplied Handy Mart sales and Revenue figures. Alcohol sales were around 17% of sales, well under the 50% threshold.

Here is Ramsey’s letter and Wortham’s response;

You would think that would pretty much take care of it wouldn’t you? Every objection Ramsey has up to this point has been explained to her as not being valid and backed up with city and state code as well as case law. Not so.

On March 21 John Ronsavall filed an affidavit with TABC rep Maloney stating “The application does not comply with the ordinances of the City of Terrell regarding the sale of alcoholic beverages in residential areas.” Neither myself nor my attorney were informed of this affidavit.

I received a phone call around March 23 from Wortham. He said, “We’ve got a moving target here.” I asked what he meant and he told me he had spoken with Ramsey on the phone and she informed him they can not approve the permit because we are in an area zoned residential. She read part of the ordinance she was relying on to him and then faxed it to him.

This was from way out in left field. The property had been zoned retail since it was a hair salon over 20 or 30 years before. This is the third objection she has come up with and the weakest yet. I verified the property was zoned retail and told Wortham. He called Ramsey but she would not take his phone call.

Wortham immediately send her a letter explaining we are in an area zoned retail and the ordinance didn’t apply. Here is a copy of the letter;

I also want to point out that Ramsey stated in her deposition she never took this position. If she didn’t why would Wortham tell me she did and compose the March 23 letter? She told him about the zoning on the phone and instructed Rounsavall to add the March 21 affidavit to the file. If you read Rounsavall’s depo you’ll see he contends nearly everything he did was on orders from Ramsey, including this.

Sometime in late March Wortham, Ramsey and Dewey Bracken, a lawyer for the TABC in Austin spoke on a conference call. During this call they went over each of the city’s objections. Mr. Bracken agreed with Mr. Wortham’s positions as to why all of the objections were not applicable to our case. Ramsey still did not yield with her opposition to our permit.

On April 12, 2004 John Rounsavall, on instructions from Ramsey, drafted a letter stating the 305 Ninth location was within 1000 feet of an educational institution and this violated a Terrell ordinance. This letter was sent to Tim Maloney of the TABC. The letter states my attorney had been notified but a copy of the letter was not sent to him or myself. The TABC in Austin did not know this letter existed. We know they didn’t because on April 18 Wortham requested a copy of the complete TABC filed from Austin. The April 12 letter was not in it.

If Rounsavall would have sent it to theTABC in Austin or Maloney had forwarded it to them I contend they would have then had a complete application, judged the objection to be invalid, and issued a permit. The city had to keep this letter from Austin to keep this from happening. With Maloney not sending it to Austin and no one sending a copy to my attorney or myself they could control who saw the letter. My attorney and myself saw this letter for the first time on October 8, 2001 while I was being deposed by the city’s attorney.

Here’s a copy of the letter that was never sent to me, my attorney, or the TABC;

Another thing I find questionable is why was Maloney so reluctant to send the application down to Austin? He even refused to send it to Austin after my attorney asked him to do so. He did not send it until the TABC in Austin instructed him to do so. Remember, the app was complete and ready to go on February 8. That’s when he told me to get him an overnight envelope and he would send it out.

If a person wanted to delay the issuance of an application this would be an effective way of doing it. Have your accomplice, the local TABC rep hold the app as long as possible. Make sure to not notify the applicant (me) the app was not sent to Austin after he was told it would go overnight on February 8. This would delay for as long as the applicant believed the TABC rep had sent the app to Austin. Then, when the applicant figures out the app didn’t get sent, make sure you get some paperwork rigged up to withdraw your prior approval for when the app finally does get sent to Austin.

Rounsavall sent the April 12 letter to Maloney. If a person was to get involved in litigation it would be handy to be able to point to some form of correspondence that would fulfill the requirment of 11.37. Yes the letter did get written and it did get sent-to Maloney. Funny how I never got my copy. Funny how my attorney never got his copy. Funny how the TABC in Austin never got their copy. Isn’t that odd?

On April 13 I got a letter from the TABC stating the city had withdrawn their certification. With that, the app was incomplete and they could not process it. They needed the city to certify whether or not the location was in a wet area. If it was not they needed to say why in order for the TABC to determine if the objection was valid. By withdrawing the certification without announcing a specific objection, the TABC was unable to continue processing the app. The TABC did not decline the application. By not responding to the question of whether the location was in a wet area the city did not force the TABC to deny the app. They don’t have the power to do that. But, they did effectively delay the application by not saying why they were protesting.

It should be noted the letter withdrawing the certification to the TABC was not requested by them and was only sent after I found out the application did not make it to Austin and hired an attorney in March. Remember, I had applied and the city issued the permit in January. No formal written protests or complaints were produced until I began to take action to get the permit to Austin.

On April 14, 2000 747 Water Hole, now taking up residence at 307 Ninth Street (right next door to Handy Mart in the location we left just a month before) begins to sell beer and wine. At one time the city was objecting to Handy Mart being too close to Terrell Christian Academy. 307 Ninth is closer to the school than 305 Ninth. The city allowed this permit to be processed and approved. There is no objection they have used that would not be applicable to both locations if they were legitimate.

The city took the position that this location is “grandfathered” because the property has the same owner. Let’s look at the TABC code they were relying on.

Sec. 109.59. APPLICATION OF DISTANCE REQUIREMENTS. (a) If at the time an original alcoholic beverage permit or license is granted for a premises the premises satisfies the requirements regarding distance from schools, churches, and other types of premises established in this code and any other law or ordinance of the state or a political subdivision of the state in effect at that time, the premises shall be deemed to satisfy the distance requirements for all subsequent renewals of the license or permit.
(b) On the sale or transfer of the premises or the business on the premises in which a new original license or permit is required for the premises, the premises shall be deemed to satisfy any distance requirements as if the issuance of the new original permit or license were a renewal of a previously held permit or license.
(c) Subsection (b) does not apply to the satisfaction of the distance requirement prescribed by Section 109.33(a)(2) for a public school, except that on the death of a permit or license holder or a person having an interest in a permit or license Subsection (b) does apply to the holder's surviving spouse or child of the holder or person if the spouse or child qualifies as a successor in interest to the permit or license.

First look at subsection (b) On the sale or transfer of the premises or the business…
Point 1. The premises was NOT sold or transferred. Grady Lawson owned it throughout.
Point 2. The business was NOT sold or transferred. The business was Handy Mart, which moved out and moved next door. The subsequent business even had a new name.

This was in effect an empty building. The land was not sold and the business was not sold. Subsection (b) would not apply here.

For the sake of argument let’s say subsection (b) does apply though. Remember what the last objection the city landed on was. We were too close to a school, right? Now I know it says public school here. Terrell Christian Academy is not a public school you say. Right. So it shouldn’t be an issue to start with. Obviously the City doesn’t differentiate between public and private schools in this instance. So read subsection ( c) Subsection (b) does not apply to the satisfaction of the distance requirement prescribed by Section 109.33(a)(2) for a public school, except that on the death of a permit or license holder or a person having an interest in a permit or license.

This means that the “grandfather clause” doesn’t apply if the subject location is too close to a school. In other words, there is no grandfather clause for 747 Water Hole. They must meet the same requirements as Handy Mart to be approved for a beer and wine permit. If the city is going to take the position Handy Mart is too close to a school then 747 Water Hole is to close to a school for the “grandfather clause” to apply.

Any way you look at it if Handy Mart can’t qualify for a beer and wine permit then 747 Water Hole can’t qualify for a beer and wine permit. You can see the TABC code yourself. The city interpreted the law to block Handy Mart from getting a beer and wine permit but they ignored the parts of the law that would have prevented 747 Water Hole (the property Grady Lawson still owned at the time) from getting a permit. Strange how that works huh?

The 747 Water Hole property was still owned by Grady Lawson. When he was discussing a lease with the current occupants he told them we would not be able to sell beer next door at Handy Mart.

On April 19 Ramsey called Wortham. I believe this is the first time she actually called him. He was out and returned her call but never got a call back.

On May 5, 2000 we filed an Original Petition for Writ of Mandamus with the county court. The hearing was on May 31, 2000. The last communication we had with the city led us to believe they were protesting the permit because we were in a residential area. The city filed their answer on May 31, the day of the hearing, and stated they were protesting because we were within 1000 feet of a public school. As a result of this change the hearing was cancelled.

At the hearing Jason Marshall introduced himself to us as the attorney for the city. We had no information on this and Marshall stated to the court he had been retained by the city on May 30,2000, the day before the hearing.

The judge for the hearing was John Ashworth who has since quit and works for a law firm in Dallas. During the proceedings he was blowing off steam and chewing out both attorneys for not communicating to each other. Now stop and think about this. Jason Marshall had been retained the day before. He didn’t have a whole lot of time to do any communicating with us. Mike Wortham had received no word from Ramsey about any new representation. How could he? Ramsey would rarely take his calls or return calls. Ashworth said the attorneys should have asked Ramsey that morning to explain the situation. None of us had seen Ramsey up to that point but lo and behold at the back of the courtroom sat Ramsey. She had either arrived late or been hanging out in the judges chambers. Do you see the irony here? The judge was sitting up there giving a smart aleck dissertation on how to use the telephone when the biggest offender and the reason for the confusion was his friend in the back, Ramsey.

On June 15 Jason Marshall, the city’s new attorney, drafted a 4 page letter to the TABC trying to convince the TABC to issue the permit without the city certifying whether it was in a wet or dry area. The city was now trying to cover it’s rear end. If they could get the TABC to issue the permit without certification, they could say the TABC had been able to issue the permit all along and it would reduce the city’s legal liability. If the city’s legal counsel, Marshall, thinks the permit should be issued, why not just withdraw the protest? Maybe because they can’t talk Ramsey into removing it? Just a guess.

On June 28 we had the new hearing. Wortham and Jason Marshall, the city’s attorney plead their cases in front of Judge Ashworth. He asks them both to explain their positions. While Mr. Wortham is laying out our position the judge acts like he hasn’t read the mandamus. He wants Mr. Wortham to explain in more detail because he “doesn’t have time to read all this stuff.” When he goes into more detail it is more than the judge wants to hear and rules for the city and against us.

I later ordered the transcript of the hearing. The quote from Ashworth, “I don’t have time to read all this stuff” was not in it. It had been cleaned up. A judge is supposed to read the cases he gets. If he doesn’t how is he going to be able to give an honest opinion? Did I say honest? Forget I said that.

Grady Lawson was at this hearing and before the hearing started he was hanging around with Marshall, Ramsey, Rounsavall, Maloney, and Cole.

After the first hearing of May 31 my staff wanted to start a petition. At the June 28 hearing a petition with over 500 names on it was submitted by us into evidence. It carried no legal weight but served to illustrate there was no public outcry to stop Handy Mart from getting the permit.

After the hearing Wortham and Marshall agreed that the city ordinance is miswritten and unenforceable but contends the TABC simply needs to overrule the city’s error. Mr. Marshall offers to see if the city will send the letter the TABC needs to make the decision.

June 28-No letter.

June 29-No letter.

June 30-No letter.

July 3-No letter.

July 5-No letter.

July 6-No letter.

July 7-No letter.

July 10-No letter.

On July 11 Marshal e-mails Wortham and tells him that he is informing the city that because of our sales percentages we would be exempt from compliance with the 1000 foot distance requirements. A city council meeting is scheduled on July 18 and the city attorney is to inform the city council. After this he is recommending the city secretary inform the TABC of this. Remember, they’ve had this information since March.

The city council met on July 18, 2000.

On July 19 Wortham talks to Marshall and finds out the city council was informed of his findings. Marshall was told this by Ramsey. The city secretary now needs to send the info to the TABC.

July 20-No letter.

Wortham got an e-mail from Marshall on July 21. He said the city is “set to do it” but he can’t promise how long it will take. He says he will call Monday and see if the city secretary can go ahead and get it out.

The first time we applied on Jan. 11, before Grady and Ramsey got involved, we were issued a certificate that day. The council meeting was Tuesday, now it’s Friday and they still haven’t sent it out.

No news on July 24.

The next day Wortham got this email from Marshall.

On July 25 Winston Smith, Handy Mart manager, called the city managers office. They told him the city manager was in a meeting. Smith left word to have him call. There was no return phone call.

Ronnie Britton called the mayor. He didn’t get much information out of him other than he was “very busy.” Britton went to Mr. Rousavalls office to see if there was another hold up. Mr. Rounsavall told him all he needed was a phone call from one of the attorneys. The paperwork was all ready to go. Interestingly, he said none of this was mentioned at the city council meeting last Tuesday night. This contradicts what Marshall sent Wortham in the e-mail on July 19 when he said the council “gave their consensus blessing.” Also, the minutes of this city council meeting do not mention Handy Mart or the issue of the beer and wine permit. Either Mr. Rounsavall was not telling the truth or Mr. Marshall was fed the wrong information

On July 26 Wortham and Marshall trade e-mails. Wortham asks if we can pick up the paperwork at Rounsavall’s office. Marshall says he can’t authorize that. I e-mail Wortham and ask him to see if Marshall will call Rounsavall, since that’s all he says he needs. Wortham said he would find out.

Ronnie Britton went back up to Rounsavall’s office at 8:00 a.m. on July 27. Rounsavall said the paperwork was going out that day. He got a letter from Marshall. Within the hour a letter was hand delivered to the store. It was our copy of the letter informing the TABC that the city was dropping their protest. This was about 169 days or nearly half a year after they first held up the application.

On August 3 the TABC issued a beer and wine permit for 305 Ninth Street.

We got the permit and were finally able to sell beer and wine. Due to the legal expenses and lost business incurred from the delay I was out of money. We had the permit now but had lost a lot of customers in the last five months. After they come in a few times and see no beer they got in the habit of going somewhere else and it is tuff to get them back.

The best sales months of summer were behind us and we were looking toward the winter. Sales were crippled and I wouldn’t be able to keep the doors open through the winter. It was either close up or sell. I had spoken with the business broker I mentioned earlier, Ivan Burkheimer, and he said since it was now a “new” store it would be hard to market. We wouldn’t be able to use the sales figures from previous years even though I only moved next door. I told him to see if he could get any interest at half what we had previously talked about it being worth. He tried to shop it for $60,000 but didn’t get any serious interest.

I ended up selling the business for $35,000 to Winston Smith’s daughter and son in law. This is around $100,000 less than it sold for recently. I needed the $35,000 to trim my debt down to a more manageable level. It looks like I’ll be paying on it till sometime in 2011.

I had six people working for me when I closed. Those jobs are gone. Winston Smith had worked there for nearly 30 years. Ronnie Britton had worked there for the better part of 15. Dutch Massey was there nearly 20 years. Jackie Rickman was there on and off for close to 15 years. They’re not there anymore.

It’s hard to believe something like this could happen in this day and age but it did and there are probably still comparable things going on. With this website at least the citizenry will now have an opportunity to know exactly how their public servants operate. Whether they do anything about it is doubtful. If you do happen to see Ramsey or Rounsavall or any of the others take the time to stop and shake hands and tell them they’re doing one heck of a job.

Due to the costs associated with the delay I have been force to look to sell the store.  David and Kim Wilmes have agreed to buy it as soon as they can secure a beer and wine permit.  They applied in September and everything has went fine.  Joe Labarba again did the application work.  The hearing went fine. The city, county, and everyone passed on it.

On October 10 or 11 Mr. Maloney had the app in his office and Mr. Wilmes was informed there was one more item that was needed haveing to do with the building.  Mr. Wilmes said he would get what was needed and bring it to Mr. Maloneys office.  Mr. Wilmes understood Mr. Maloney to say that he would then be able to take the application and mail it after Mr. Maloney had completed it.

On Tuesday Oct. 17  Mr. Wilmes met with Mr. Maloney in his office and asked if he could go mail the app.  Mr. Maloney responded he had some more things to do to it and he would mail it for him.  Mr. Wilmes then went to the Post Office and got an overnight envelope which he took back to Mr. Maloney.  Mr. Wilmes then left.

Friday the 20th we could not locate the app.  I am aware it may take awhile for the TABC to log it in.  But on Wednesday Mr. Wilmes got the tracking number for the piece of mail from Mr. Maloney and the Post Office has no record of it being sent.  Mr. Maloney says he put it in the box after 4:30 and that may have made it a day later. 

I do not know why the people responsible have done what they have done.  I do not know how much Mr. Maloney is involved in it.  I do know he told me in February he would send my app out the afternoon of the 8th.  I know he told Mr. Wilmes his went out on Oct. 17.  On Oct. 18 I called Mr. Maloney and he told me it went out "this morning".   Was it Tuesday afternoon or Wednesday morning?   I know on Friday October 20 Joe Labarbas office had a message in for him to contact them and he did not.  I know on that same day they tried calling and all they got was a fax tone so they sent him a fax asking if he sent the app out and when and they got no response.   Why does the Post Office have no record of a piece of overnight mail ever being sent?

There are a lot of questions.  If you could help find the answer to some of them I would be more than grateful.