DOCKET NO. 580538 TEXAS ALCOHOLIC BEVERAGE

Transcription

VS.
DOCKET NO. 580538
TEXAS ALCOHOLIC BEVERAGE
COMMISSION,Jurisdictional Petitioner
§
HIGHLA1.JD HILLS NEIGHBORHOOD
ASSOCIA.TION,
STATE REPRESENTATIVE MARC VEASEY,
CITY COUNCIL MEMBER KATHLEEN
HICKS,
COMMISSIONER ROY C. BROOKS,
HIGHLA1.JD HILLS CHURCH OF CHRIST,
EAST SAINT PAUL BAPTIST CHURCH,
NRP GROUP, LLC,
JESSIE & NANNIE KEMP,
ROBERT & LAURA MEEKS,
REVERE1~D CARL NEALY,
RENNY ROSAS, Protestants
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BEFORETHE TEXAS
ALCOHOLIC
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ORIGINA,L APPLICATION OF
EF CORP
D/B/A ESCAPADE2001, Respondent
(MB, LB)
T ARRANT COUNTY, TEXAS
(SOAH ))tOCKET NO. 458-09-0896)
BEVERAGE COMMISSION
ORDER ADOPTING PROPOSAL FOR DECISION
Ci\ME ON FOR CONSIDERATION this ~
numberedcause.
dayof _June- 2009,the abo"e-styledand
After proper notice was given, this case was heard by Administrative Law Jud,geTanya A.
Cooper. The hearing began on December 19,2008. The hearing concluded on February 11,2009 and
the recorcl closed on April 17, 2009. The Administrative Law Judge made and filed a Proposal For
Decision ,containingFindings of Fact and Conclusions of Law on April 27, 2009. This Proposal For
Decision was properly served on all parties who were given an opportunity to file Ex:ceptions and
Replies a:spart of the record herein. Exceptions were filed to which the Administrative Law Judge
replied an.drecommended that no changesbe made to the Proposal for Decision.
The Administrator of the Texas Alcoholic Beverage Commission, after review and due
consideration of the Proposal for Decision adopts the Findings of Fact and Conclusions of Law of
the Administrative Law Judge, which are contained in the Proposal For Decision and incorporates
those Findings of Fact and Conclusions of Law into this Order, as if such were full:f set out and
-1-
580538 Order PFD
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separately stated herein. All Proposed Findings of Fact and Conclusions of Law, subm:ltted by any
party, whic:h are not specifically adopted herein are denied.
IT IS THEREFORE ORDERED, by the Administrator of the Texas Alcohol:lc Beverage
Commission, pursuant to Subchapter B of Chapter 5 of the Texas Alcoholic Beverage Code and 16
TAC §31.1, of the Commission Rules, that the Original Application of EF CORP D/B/A
ESCAPADE 2001, for the issuance for a Mixed Beverage Permit and a Mixed Beverage Late Hours
Permit be C::;RANTED.
This Order will become final and enforceable on July 2.2009. unless a Motion for Rehearing
is filed befi:>re that date.
By copy of this Order, service shall be made upon all parties in the manner indica1:edbelow.
SIGNEDthis the~ dayof June_- 200~),at Austin,
Texas.
fit)
Alan Steen,Administrator
TexasAlcoholic BeverageCommission
Hon. Tany.:.Cooper
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
6777 Camp Bowie Blvd., Suite 400
Fort Worth., Texas 76116
VIA FAC.5~IMILE (817) 377-3706
Timothy E. Griffith
ATTORNI~YFOR RESPONDENT
101 East P;arkBlvd., Suite 600
PIano, TX 75074
VIA FACj~IMILE (469) 742-9521
-2580538 Orde!r PFD
EF Corp.
d/b/a Escapade2001
RESPONDENT
P.O. Box ~)40427
Dallas, Te:Kas75354-0427
VIA REGIULAR MAIL
Highland Hills Neighborhood Association
PROTESTANT
c/o John L. Gamboa
ATTORNEY FOR PROTESTANT
2501 Parkview Drive, Suite 405
Fort Worth, TX 76102
VIA FAC~~IMILE (817) 885-8504
State RepresentativeMarc Veasey
House District 95
PROTESTANT
1120 S. Ffeeway, Suite 121
VIA FAC~~IMILE (817) 339-9352
Fort Worth City Council Member District 8
KathleenHicks, PROTESTANT
1000 Throlckmorton Street
Fort Worth, Texas 76102
VIA FAC~~IMILE (817)392-6187
Tarrant Co'unty Commissioner Precinct No.1
Roy C Brooks, PROTESTANT
6551 Granbury Road
VIA FAC~~IMILE (817)370-4503
Highland Hills Church of Christ
c/o Louis Howard, Church Leader
PROTESTANT
1121 Oaks Grove Road
VIA FAC~~IMILE (817)568-9187
-3580538 Order PFD
EastSaintPaul BaptistChurch
c/o L.S. Wilson, SeniorPastor
PROTESTANT
5300 Oak GroveRoad, West
VIA FAC~~IMILE (817)293-6527
NRP Group, LLC
c/o Daniel B. Markson, Senior VP Development
PROTESTANT
III Soledad, Suite 1220
San Antonio, TX 78205
VIA FAC~~IMILE (210) 487-7880
Jessie& Nannie Kemp
PROTESTANT
1421 Glasgow
VIA REGjULAR MAIL
Robert & ]..,auraMeeks
PROTESTANT
5640 Conlin Drive
VIA REGjULARMAIL
Reverend Carl Nealy
PROTESTANT
2612 Creekwood Ln.
VIA REGjrJLAR MAIL
Renny Rosas
PROTESTANT
P.O. Box 1.481
VIA REGiULARMAIL
Sandra K. Patton
ATTORNEY FOR PETITIONER
TABC Legal Section
Licensing Division
Dallas District Office
-4580538 OrdE~rPFD
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DOCKET NO. 458-09-0896
TEXAS ALCOHOLIC BEVERAGE
COMM][SSION, Petitioner, and
V ARIO1JS PROTESTANTS,
ProtestaD~
v.
§
BEFORETHE STATE OFFICE
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OF
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E.F. CO:RP. D/B/A
ESCAP)~DE2001,
Applicant/Respondent
§
§
ADMINISTRATIVE
HEARJ[NG
PROPOSALFOR DECISION
E.F. Corp. d/b/aEscapade2001 (Applicant/Respondent),
seeksa mixed beverageperulit and
a mixed beveragelate hours permit for a premiseslocated at 2495 S. Campus Court, Fon Wonh,
TarrantC:ounty,Texas,from the TexasAlcoholic BeverageCommission(T ABC). The Protf:5tants,
consistingof local arearesidentsand concernedcitizens assertthat the permits should be denied
basedupon the generalwelfare, peace,morals, and safetyof the people. TABC's staff (Sta~ff)did
not take ,~position concerningthe application. This Proposalfor Decision recommendstlrlatthe
permitsbe issued.
I. PROCEDURALHISTORY
.T
ABC Staff issued a notice of hearing on October 30, 2008. informing all parties that a
hearing ~'ouId be held on the application. as required by § 2001.052 of the Administrative Pro(~edure
Act, TEx. GOy'T CODE:ANN. Chapter 2001. The hearing began on December 19,2008, in FOIt
Worth, Texas, with Tanya Cooper, an Administrative Law Judge (ALJ) with the State Ofl:ice of
Adminis1rative Hearings (SOAH), presiding.
A.
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TABC Staff appearedand was representedby SandIa Patton, a TABC Staff At~omey.
Applicant appearedand was representedby attorneysWadeBingham,SteveSwander,and T:imothy
Griffith. Protestantsappearedand wererepresentedby an attomey, JohnGamboa. Therewere no
challengc:sto the notice of hearing,jurismction, or venue for the hearing,so thosemattetSwin only
be discussedin the Findings of Fact andConclusionsof Law sectionsof this Proposal. The hearing
concludedon February 11,2009, andtJ1erecordclosedonApriI1?, 2009, afterthe partiessubmitted
written a:rguments.
II. DISCUSSION
Applicable Law
The statutory foundation for the protestto this application is § 11.46(a)(8) of the Texas
Alcoholil; BeverageCode (the Code), which provides:
The commissionOTadministratormayrefuseto issuean original or renewal permit
w'ith or without a hearingif it hasreasonablegroundsto believe and finds that anyof
ttle following circumstancesexist:
(~~) the place or mannerin which the applicantmay conducthis businesswarrants
tile refusal of a permit basedon the generalwelfare, peace,morals, and safetyof the
p,:ople and on the public senseof decency.
?l;rumerouscase decisions have fUrthe( intexpreted the above.cited Code provision holding
tha[ in order to deny an alcoholic beverage permit to a fully quaJifjed applicant who proposes to
operate Bilawful business in a wet a(ea and in compliance with the zoning ordinances o'f tl-le city,
some urnlsuaJ condition or situation must be shown so as to justify a finding that the place or nrlanner
B.
1.
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in which the applicant may conduct its businesswarrantsa refusal of a pemUt.1 There is no set
formula to detemline if a "place and manner"conditionexists within a proposedlicensedpre'lnises'
operatioIJls.Thus, great discretion is provided by legislative grant.2
PLlblic Comment
On December19, 2008, the ALJ conveneda pub1ichearing in this matter prior to 1:aking
evidencein this case. Severalpersonsspokeagainsttheissuanceof the permits, citing a numberof
safety,mt)ra1,andgeneralpublic welfare concerns.The ALl closedthe public hearingonthaI:same
day.
c.
E'vidence
PhysicalSetting.
The proposed location for the licensed premises, Escapade 2001, is within a commerci;u and
industrial area that is generally bounded by a major interstate highway to the nonh, and a r"iilroad
track and utility transmission easement to the south and west. Other businesses, Sam's Club
Warehou!:e and a Roadway trucking facility I are in the immediate area. Beyond the railway and
utility lint~sis a large public park with a community center and athlctic facilities, and the resid~ntial
neighbortlood, Highland Hjlls.
Residen(s affiliated with the Highland
Association are Protestants to this application.
Hills Neighbol:hood
In addition to residences, there are churches,
convenience stores, and other smaller businesses, including a small nightclub in the neighbor:hood.:>
Sam's CI!l1band a Valero convenience store in the Highland Hills neighborhood currentl~yhold
TABC-iS!iued pemlits for the sale of alcoholic beverages.
1 TABC v. Twenty Wings,LTD. et al. 112 S.W.3d 647: TABCv. Mikulenka. 510 S.W .2d 616; and BaiJorian
Props.. Inc. v. TABC. 870 S.W.2d 686.
:
2 TABC. v JesusRodriguez d/b/a La GaviDIaNire Club, 2007 Tex. App. LEXIS 4276; and Four Sra.~s
Food Mart, Inc. v. TABC. 923 S.W.2d 266.
3 This businesshas bccn in the neighborhood for an estimated30 years; it does not sell alcoholic bcvl!rages.
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Applicant's building is a large stI1lcture,designedand built to housea danceclub. Two large
pavedpwrkinglots are available for Applicant's patrons,one of which is currently fenced,ani:!plans
exist for :fencingthe secondlot.
The City of Fort Worth's City Secretaryandthe Tarrant County Clerk certified Applicant's
I
location as being within a "wet area" for a mixed beveragepernrit. Also, the locatiol~lis in
compliancewith the City of Fort Wonh' s zoningandbuilding occupancyregulations. From~rABC
Staff's review of this application, the proposedlicensed premisesis not within a Testricte~d
area
surroundinga residence,school, church, daycare,or social servicefacility. Baseduponits review
of the application, TABC Staff did not take a position concerning this application becauseit
determin~:dApplicant is a fully qualified applicantwho proposesto operatea lawful busine:;sin a
wet area~lndin compliance with the ordinancesof the «;::ityof Fort Worth and orders of the Tarrant
County Commissioner'sCourt.
2.
Protestants'evidence.
Witnessestestifying on behalf of the Protestantsincluded Eunice Givens, SteveRodriguez,
Nonna Rodriguez, Robin Rodriguez, JuanRodriguez,and RennyRosas.One exhibit was ad:rnitted
into evidence,a copy of information derived f(om the Dallas Escapade2001's internet webs,ite.
Ms. Givens,a 40-year residentof theHighland Hills neighborhood,testified thatAppljc;ant's
businessINasnot going to be an assetto the community. She opined that the place Applicant
selectedfor its proposedlicensedpremiseswas inappropriatefor the area, which shecharacterized
as largely residentialwith families thatwould notbe patronizingApplicant's business.Ms. (,ivens
testified Ulerehad alreadybeenproblematicoperationsat Applicant's businesswhen it openedon a
few occasions,either allowing personsto bring their own alcoholic beveragesto the club or giving
alcoholicbeveragesawayto patronswjthout charge. On thoseinstances,therewere noiseandtraffic
issues. Ms. Givens said she had also protestedthe Valero conveniencestore's application ~osell
alcoholic beverages,but added at least tl1e conveniencestore sold other items, in additi,onto
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alcoholic beverages,that were of value to personsin the suIToundingcommunity.
Norma Rodriguez, Robin Rodriguez, Juan Rodriguez, and Steve Rodriguez at1:ended
Applicant's businesson the limited occasionswhenthe businessopenedeither with free alcoholic
beveragessupplied to patrons or allowing patronsto bring their own alcoholic beverages. Steve
Rodriguezhad beenaskedby RennyRosasto yjsit Applicant's businessand "scope out" the club's
operations. SteveRodriguez,in turn, askedhis family members,all of whom ljve in the Dallas area
and have attendedthe Dallas Escapade2001 club, to go to the new Fort Worth club.
All of these witnesses described crowded, and somewhat chaotic, conditions botlI inside the
proposed licensed premises and on the premises' pnrking lot on the nights they attended the:club.
Most people were having a good time, but some appeared intoxicated.
Other problematic issues
were notE~dby the Rodriguez's, such as the traffic access to the premises. a lack of obse!l~able
security p,ersonnel.high noise levels, and other (ypes of disorderly conduct. On one occasiorJ,Juan
Rodrigue~ observed some handcuffed, intoxicated men being removed from the premises by ],olice
officers. Robin Rodriguez described watching some "sexy" ladies and men dance conteslt:;; and
although l:hesecontests were risque, according to Ms. Rodriguez, tile contests were not as rauru:hy as
the similar contests she had observed at Escapade Dallas, such as the "banana" contest.4
Mr. Rosas, a community organizer, testified he was asked by Fort Worth City Council
member,Kathleen Hicks, to become involved in protesting Applicant's TABC-issued pe:rmits.
Accordinl~to Mr. Rosas,Applicant's Dallas operationhad a bad reputationand was not a g';11od
fit
for the commllnity where it was being located.However,Ms. Rosasacknowledgedthat Applicant
had not bc~en
contactedaboutProtestants'intentionsto protestthis application until after Applicant
had completedits buiJding's construction.
When Mr. Rosaslearned Applicant was opening without [lIst securing its TABC-issued
perliIlits,he went to the proposed licensed premisesto observeits operations on opening Jllght.
4 "r1Ie"banana" contestis depict£d in Protestant'sExhibit 5, an internetwebpageprintout fu;)mEscapade2001
Dallas' web site. The conte~tinvolves a female caung a bananaheld in a male's crouch. without usin2 her hand~.
3.
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Accordinlgto Mr. Rosas,therewas traffic congestionandgeneralizedchaosin the premises'parking
lots, He I:>bserved
TABC agentsaITestingjntoxicatedpersons. And ashe attemptedto inve!;tigate
mattersftlJther. he was orderedoff the property by Applicant's representatives.He acknowledged
asking Steve Rodriguez to go to Applicant's businesson later occasionsto observeits operations
becausehe had beenbannedfrom the premises.
activities
Applicant's evidence.
Witnessestestifying on behalf of Applicant included Dario Ferdows, Gilberto ToITCZand
Michael C~oker.Severalexhibits were admittedinto evidence,including numerousphotographsof
Applicant's facility depicting a.-easwhere alcoholic beveragesare proposedto be sold and s~rved.
Applicant's evidenceis sununarizedbelow.
DatrioFerdows is the Ownerof Applicant. He testified that he grew up in tbe nightclub
business,having worked jn otherfamily-owned operationsbeginningas a valet and workin~;up (0
managingthe Escapade2001 club in Dallas. The DallasEscapadelocation is ~ree times the~.jize
of
the proposedFon Worth location, which is the subjectof this hearing. According to Mr. Ferclows.
none of tl1,elicensed premises that he has beeninvolved with managing has ever been Cil~:dby
TABC Staff for any Code violations.
With respectto the Fort Worth club, Mr. Fer:dowssaid he had researchedthe market and
personallyselectedthe location. The property metall of his criteria due to its proximity to highway
.
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access,p'rice, size, zoning, and ability to meet all TABC and City of Fort Worth regulations. Mr.
Ferdows said he met with the landowner and T ABC officials, posted the required signage for Illotice
of application for TABC-issued permits, and after being told there had only been one inquiry to
TABC SI:aff about the proposed pennit, he purchased the property. Construction of the building
commeuc:edand was completed in August 2008. At this point. Mr. Ferdows said he learned!from
TABC Sl:aff that a protest to the application had been filed.
Mr. Ferdows said he attempted to
contact some of the Protestants, and he finally got a meeting with several of them. However. he said
it was clear during Uleir meeting that Protestants were not interested in working with him to re~solve
their conc~ems.
Nlr. Perdows said the cost of the building was approximately $5 million.
Some of the costs
were attributable to making the building a good fit for its surroundings. Added attention was paid to
containing sound inside the building, n-affic flow, and security measures, such as fencing the
propeny ;md installing appropriate lighting and cameras. He testified that approximately 58 people
will be el1l1ployedby Applicant when the club is fully operational; and tax revenues from Appli,cant' s
operatiol1,swith TABC~issued pennits are projected to be $620,000 annually.
Nt!. Ferdows concededthat the "sexy chica" dancewas a standardcontest in many clubs
througho'lltTexas, and he did not plan to eliminate it from attractions at the Fort Wortll club.
However, he testified that the "banana" contest, which was a major source of opposition by
Protestantsanddepicted on the Dallas Escapade'sinternetwebsite,was not a standardactivi1:yand
would lli>t occur again in any of his operations. Mr. Ferdows said that he had employed a
photogra:pher
to promote Dallas Escapadeactivities on the internet. This employeeorganiZt~d
the
"banana"danceanddisplayedphotographsfrom the eventwithout pemlission. Mr. Ferdowssaidhe
was unav/areof the photographs'existenceuntil shownthe materialsby Protestants.Mr. FeJ:dows
stated upon learning about the website contents,the employeewas fired and the site wa5 taken
down.
Gilberto Torrez, a fomler FBI agentwith severalyearsof security experience,testified he
inspecteclthe proposedlicensedpremisesto determinewhat, if any, impact Applicant's operations
.
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might ha\'eon the surroundingarea. He observedthat therewas a significant natura]and man-made
barrier bf!tween Applicant's property and the Highland Hills' neighborhood and park. These
obstaclesincluded an earthenbenD,barbedwire fence,electric transmissionlines. railroad tracks,
brush.and low spots containing water making accessdifficult, if not impossible, to move d:irectly
betweenthe areason foot. In orderto acce~sthetwo areasin a motor vehicle, one mustdrive out of
the immediateareatraveling approximately1.7miles aroundto reachthe ornerside of the berrnarea
via severaJotherroadways. Mr. Torrez saidhe alsocomparedneighborhoodaccessbetweenone of
Applicant:'snearestcompetitors (OK Corral), and found t11erewas easy. direct accessbetwel~:n
OK
Corral and its surrounding areaseither by walking or driving.
Mr. Torrez said that he alsoreviewedApplicant's securityplan andcharacterizedit asbeing
superiortiC)
somegovernmentalplans. Thereis only one way into and out of the proposedlicensed
premises. In addition to the naturalbarriers discussedabove,a portion of Applicant's propl:rty is
fenced. There arenumerouscamerasto monitor activities on theproperty; and Applicant will have
adequatestaff with communication capabilities to managethe premisessafely. In Mr. Torrez's
assessment,Applicant had not scrimped on any security details that would act as a detenoentto
individuals who might seekto engageinappropriateand dangerousconduct.
Michael Coker is a land use and planning consultant. He possessesmany years of expe::rience
in land use and was retained by Applicant to evaluate the site for this proposed licensed prelruses.
Mr. Coke1rstated that the property had a zoning use ("J" lmedium industrial) that allowed night clubs,
along with many other uses, including metal fabrication. assembly plants, and slaughter/pnlcking
houses. }:urther, the property's location had been previously voted "wer" for alcoholic be'\'erage
sales by tIle area residents. No residences, churches. or schools are within the restricted area around
Applicanl~'s proposed licensed premises.
Mr. Coker said from his analysisof the property, Applicant's proposedoperations'would
hav~littlE~impact on surroundingareas,including the Highland Hills neighborhood. He, ho',~ever,
concededthat he did not interview any of the area's residents. Instead, he basedhis opinion on
severalother factors, suchas accesspoints betweenthe areasand soundlevels. Mr. Cokerte:;tified
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the physi(~albarriers betweenApplicant's propertyand the community(public park andresidences),
included:i berm and utility right-of-way that actedas both a sound and accessbuffer.
Mr. Cokersaid that he had beeninsideApplicant's building, andthe building appeare,d
to be
well constructedwith attention to appropriateinsta)lationof insulation to contain sound. ~~ound
studies w'ere conducted by Mr. Coker's company, which revealed that Applicant's operations
producedconsiderablyless noise than the train usingthe tracks betweenApplicant's property and
the Highland Hills neighborhood. Traffic was confined to a dead-endstreetending in Applicant's
property. The buffer area betweenApplicant's property and the city park precludeswalkin~:from
Applicanlt's propeny, so there would be li.ttle or no opportunity for persons [0 entl~r the
neighborhoodto commit crimes or violent acts. Further, Mr. Coker noted that since the hours of
Applicanl['Soperationsand those of the park and community centerwere different, he saw nc-basis
for deternuningthatApplicant's operationwould negativelyimpactthe public faciliues' oper.cltions.
Ill. ANALYSIS
In this instance,Applicant is fully qualified to obtain its requestedTABC-issued pelmits.5
Applican1:'s locationhasbeendesignatedas"wet" througha Fort Worth-residentvoterelection. The
Fort WOI1JtCity Secretaryand Tarrant County Clerk cenified Applicant's location as being within a
"wet area"for a mixed beveragepennit in Fort Worth, TarrantCounty, Texas.The Fort Worl~hCity
Councilhaszonedthis location asanareawherecommercia]activity is pennitted; the areapresently
includes,t large commercial rrucking firm andwholesa]ewarehousestore. Since Applicant h:asmet
these generalcriteria for securing a TABC-issued pennir for alcoholic beverage sales at this
location, the AU next examines the evidence in this case to determine if there are ullusual
conditions or a situation establishedso as to justify a finding that the place or manner in which
.5 T ABC Staff announcedat the hearing that it took no positionon the protestto this application. It follnd that
Applicant :metall criteria (distance requirements from churches, schools, etc.; the business is operated under an
app~oprialeownershipstructure;Applicant's principals passedcriminal and generalbackgroundchecks; no fee!;,taxcs,
etc. werCowcd; Applicant posted a required surety bond: a premisessuitable for conducting business as a licensed
location is ~vailable:and Applicant hasno history for engagingin violations of the Code) for securing aTABC'-issued
peunit. Se,~TEx. ALCO.BEV. CODE.ANN. §§ 11.11, 11.46,and 11.49.
.
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PAGE III
Applicant may conductits businesswarrantsrefusal ora pennit.
Plrotestantsbear the burden of proof in establishingthat AppJicant's businessope:cations
createan unusualcondition or situation that is contrary [0 £hegeneralwelfare, peace,morals, and
safetyof the people and on the public senseof decency. The essenceof Protestants'objectionsto
Applicant's requestto sell and servealcoholic beveragesis thatpersonsconsumingthebeveragesat
Applicant's businesswill have a detrimental impact on public safety and the quality of Life for
personsresiding in the area. Some of Protestant'sspecific arguments against these requested
permits are discussedbelow.
A. Placeof Operation.
PJ'otestantscontend that individuals impaired by the consumption of alcoholic beverages at
Applicant's premises pose a threat to the safety and enjoyment of the adjoining neighborhood. Both
Mr. Torre:z and Mr. Coker testified convincingly that numerous natural and man-made barrier:~exist
berween ,I\pplicant's property and the neighborhood and park, These barriers bar vehicular 1J"affic
and make: foot traffic exceedingly difficult.
Consequently, the AU believes that any impact on
residents of the area and users of the Highland Hills'
community center and park wolJlld be
negligibl(~.
The potential of excessive noise being created by Applicant's operation was also expressed
as aconCE~m
by Protestants to the peaceful enjoyment of their neighborhood. However, the evidence
showed j~pplicanr has taken steps during the construction process of its building to ade((1.1ately
insulate it and preclude excessive noise from being heard outside the building. Sound tesling under
simulatedl operating conditions was performed by Mr. Coker's staff, and the level of sound was
found to be below recognized tolerances.
I~otestant'sevidenceconsistedmainly oftesrimonygenerallydiscussingthe negativeeffect
alcoholic beveragesales by Applicant would bring to the Highland Hills neighborhoodand the
communityasa whole. However. otherlicensedpremisesfor the saleof alcoholic beveragese:ristin
.
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or neartile area,and no correlationwas madebetweenthoseTABC-pennitted salesoutlets and any
overall decline in the living environment. Ful1hef, no evidence was presented from allY law
enforcementofficers,6 "first-responder" firefighters, emergencymedical personnel, or highway
design and construction engineers showing that Applicant's operations would create traffic
congestionor other public safetyconcernsin the future should theserequestedpennits be granted.
Moreover,Texas law does not require that an applicantfor a TABC.issued permit selecta lcl,cation
fre~ of potential rraffic hazardsin orderto qualify for a pennit: As a result, Protestant'sev:idence
was insufficient to establishthatthe placewhereApplicantseeksto sell alcoholic beveragest}'lfough
TABC-issued permits is unsuitableand wauants denial of Applicant's permit requests.
B., Manner of Operation.
Protestantsopined that Applicant's operations are unwholesome, and are otherwlisean
incompatiiblefit with the area. Protestant'sevidence on these points was mainly providl~dvia
personssc:ntby Mr. Rosasto observeand reportactivities ongoing at Applicant's businesson some
limited ol:casions when the club was opened "BYOB"S or giving alcoholic beverages,away.
Pro~estant:s
alsopresentedcontentsderived from a websitedepictingactivities, someof which could
be charac1:erized
as lewd, at anotherlicensedpremisesmanagedby Applicant's owner. Ho,\,ever,
the ALl finds that this evidence,whenweighed againstotherevidence,is insufficient to deteJ:mine
,
that Applicant's requestedpermits should be denied.
Thleevidenceshowed that other TABC-issuedlicensedpremises exist in the area. ~[hese
alcoholic beverage outlets include Applicant's main competitor, a convenience store, and a
wholesalewarehousestore. In addition to theseTABC-1icensedpremises,a BYOB nightclub has
existedfor manyyears in the Highland Hills neighborhood. Theseoperationsexist without c.t'llsing
6
l'Ex.ALco.BEV.CODEANN.
§ 11.41.
}(ermit Concerned Citizens Comm. V. Colonial Food Scores. Inc., 650 S. W .2d 208,
8 "BYOB" means"bring your own bortle" and is a term commonly associatedwith businessesthat allow
customersor patronsto bring their OWna]coholic beveragesfor consumptionwhile engagingin activities fearuredby said
businc~s.arojis a siruaLionunregulated by TABC Staff.
04/27/2009
15: O,~ FAX
SOAHDOCKET NO. 458-09-0896
141014
PAGE 1:~
\Vhile the testimony from members of the Rodriguez family noted some operational
problem:~at Applicant's proposedlicensedpremises,the ALJ agreeswith Applicant's ownl~r,Mr.
Ferdows,that someof theseissueswere to be expectedwith any new operation; and in fact, would
be lessenedif Applicant's premiseswere operatingwithin the purview ofTABC Staff.
R~esidentia1
area security, traffic, parking difficulties, intoxicated persons, and the presc~nceof
minors airthe premises were the chief concerns cited by Protestants asreasons to deny these pll~rmits.
However. TABC-issued permits offer more security and control over the existing club's actJlvities.
Wjth T ABC-issued pemlits, T ABC Staff can conduct inspections. investigations, and r'::gulate
alcoholic: beverage service to minors, excessive consumption, and criminal activity, if any of these
situation:s should occur. Further. Applicant's
staff will be required to attend training t'~'learn
applicable laws and regulations for sales and service of alcoholic beverages.
Lastly, Mr. Ferdowshas demonscratedhis ability to operatea licensedpremisessucce:ssfully
underthl~provisions of the Texas Alcoholic BeverageCode. He managesa similar businessin
Dallas. ~~oevidencewas producedto show thatthe Dallas premiseshas any history of enga~~ing
in
or allowing Code violations at that location. And while someof the danceconresrsand activities
cited by J?rorestanrs
as being inappropriateare of questionabletaste, they do not rise to the ](~velof
prohibited activities. Mr. Ferdowsacknowledgedin his testimonythat the most offensive o:fthese
contests,the ££banana"
contest,would not be held in this proposedlicensed premisesor any other
premisesmanagedby him. His testimony that the eventwas organizedby one of his emplo~feesat
the DallasEscapade,but that it had beenheld without his pem1ission,was credible. Conseq1Jently,
the AU believes thatApplicant's requestfor TABC-issuedpermits should not be denied uponthis
basis.
C:. Conclusion.
Protestants' concerns, although understandable,do not rise to the level of an u:t1usua]
04/27/2009
141015
15: 0:9 FAX
SOAR DOCKET NO. 458-09.0896
PAGE 1.;1
condition or situation that justifies a finding that the place or manner in which the Applicant
conducts,businesswarrants a refusal of the permits soughtbasedon the general welfare, hea]tn,
peace,morals,safety,andsenseof decencyof thepeople. Accordingly, basedonthe evidencl~jn the
record, tJ1eProtestantshave failed to show, by a preponderanceof t1leevidence that Applicant's
requestedpermits should be denied.
IV. RECOMMENDATION
The AU recommendsthat Applicant be grantedthe pemrits soughtin this application.
V. FINDINGS OF FACT
1
E.F. Corp. d/b/a Escapade2001 (Applicant/Respondent)has filed an application y,"iiththe
T,exasAlcoholic BeverageCommission(TABC) for a mixed beveragepeInlit and a :mixcd
beveragelate hours permit for a premiseslocated at 2495 S. Campus Court, F9rt '~Vorth,
T,arrant County, Texas.
2.
PJ:otests
to the application were filed by concernedcitizens based on the general Vv'elfare,
hE~alth,
peace,morals and safety of the peopleand on the public senseof decency.
3
.A~
Notice of Hearing dated October 22, 2008. was issued by TABC Staff notifying all parties
that a hearing would be held on the application and infonmng the parties of the time, place,
and nature of the hearing.
4.
On December 19, 2008, a hearing began before Administrative Law Judge Tanya COlJlperin
F()rt Wolth, Texas. TABC Staff appeared at the hearing through its Staff Attorney :5andra
Plltton, but took no position on the application. Applicant appeared and was represen1tedby
it~iattorneys, Wade Bingham, Steve Swander. and Timothy Griffith. Protestants ap~'eared
atld were represented by their attorney, John Gamboa, The rccord closed on April!7, 2009,
after the parties filed written arguments in this case.
5.
A:pplicant has met all T ABC requirements for holding the pemrits requested for the proposed
li(~ensedpremises at this location.
6.
NIQunusualconditions or situations exist that would warrant refusal of the pemlits.
3.
04/27/2009
15:011 FAX
~O16
SOAR D(JICKET NO, 458-09-0896
PAGE 1'1
VI. CONCLUSIONSOF LAW
1.
T ABC has jurisdiction over this matter under TEX. ALCO. BEY. CODEANN. chs. 5, ]11,28,
aJ.1d
29, and §§ 6.01 and 11.46(a)(8). TEX. ALCO. BEV. CODEANN. § 1.01 et seq.
2.
The State Office of Administrative Hearings has jurisdiction over all matters reI.ated to
conducting a hearing in this proceeding, including the preparation of a proposal for d,:~cision
w'ith findings of fact and conclusions of law, pursuant to TEX. GOV'T CODEANN. ch. 2003.
Proper and timely notice of the hearing was provided to a11parties pursuant to the
Administrative ProcedureAct, TEx. GOV'TCODEANN. ch. 2001, and 1 TEx.AD~.(::ODE§
155.401.
4.
I!isuanceof the requestedpermits doesnot adverselyaffect the safety of the public, nor will
it adverselyaffect the generalwelfare, peace,or morals of the people or violate the public
sl:nseo'fdecency. TEX. ALCO.BEV.CODEANN. § 11.46(a)(8).
5.
A.pplicant's application for a mixed beveragepemrlt anda mixed beveragelate hours.pemrit
for the premises located at 2495 S. Campus Court, Fort Worth, Tarrant County, Texas,
slhouldbe granted.
S'lGNEDApril 27, 2009.
.~
AD~lSTRA TIVE LAW JUDGE
~TATE OFFICE OF ADMINISTRATIVE HEARINGS
~
141017
STATE OFFICE OF ADMINISTRATIVE HEARINGS
FT.WORTHOFFICE
6777 Camp Bowie Blvd Suite 400
Phone: (817) 731~1733
Fax: (817) 377-3706
SERVICE LIST
AGENCY:
Alcoholic Beverage Commission, Tcxas (TAB C)
STYLE/CASE:
ESCAPADE CLUB CORP / ESCAPADE 2001
SOAH DOCKI:T NUMBER:
458-09-0896
REFERRING J\GENCY CASE: 580538
STATE OFFICE OF ADMINISTRATIVE
ALJ TANYA COOPER
REPRESENT A,TIVE I ADDRESS
PARTIES
TIMOTHY
GRTFF'ITH
ATTORNEY AT LA W
101 E. PARK BLVD., SUITE 600
PLANO. TX 75074
(214) 585-2383 (PH)
(469) 742-9521 (f I\X)
RESPONDENT
JOHN L. GAMBO,4,
A TTORNEY
AT LAW
ACUFF & GAMBOA, LLP
2501 PARK VIEW DRIVE, SUITE 405
FORT WORTH, T:X 76102
(817) 885-8500 (PH)
(8 J7) 885-8504 (F I\X)
PROTESTANT
SANDRA K. PATTON
ATTORNEY
TEXAS ALCOHO:LIC BEVERAGE COMMISSION
420 WEST 20TH STREET, 600
HOUSTON, TX 77008
(713) 426.7900 (PH)
(713) 426.7900 (Wl<)
(713) 426-7965 (Fi\X)
TEXAS ALCOHOLIC BEVERAGE COMMISSION
Pnge I of:!
.
6.
04/27/2009
15:09
FAX
1"41015
8
PAGE 13
condition or situation that justifies a finding that the place or manner in which the Applicant
conductsbusinesswarrants a refusal of the permits soughtbased on the general welfare, hea]tn,
peace,morals, safety,andsenseof decencyof thepeople. Accordingly, basedonthe evidencein the
record, the Protestantshave failed to show, by a preponderanceof tlle evidence that Applicant's
requestedpemlits should be denied.
I
IV. RECOMMENDATION
The AU recommendsthat Applicant be grantedthe pennits soughtin this application.
V. FINDINGS OF FACT
1.
E.F. Corp. d/b/a Escapade2001 (Applicant/Respondenl)has filed an application ~.ith the
Texas Alcoholic BeverageCommission(TABC) for a mixed beveragepermit and 8 mixed
beveragelate hours permit for a premiseslocated at 2495 S. Campus Court, Fc;>rt
'Worth,
TarrantCounty, Texas.
2.
Proteststo the application were filed by concernedcitizens based on the general v.'elfare,
health, peace,morals and safety of the peopleand on the public senseof decency. I
3.
A Notice of Hearing dated October 22,2008, was issued by TABC Staff notifying all parties
that a hearing would be held on the application and infonning the parties of ,the time, place,
and nature of the hearing.
I
4.
On December19, 2008, a hearingbeganbeforeAdministrative Law JudgeTanya Cooperin
Fort Wonh, Texas. TABC Staff appearedat the hearing through its Staff Attorney :>andra
Patton,but took no position on the application. Applicant appearedand wasrepresentedby
its attorneys,Wade Bingh~, SteveSwander,and Timothy Griffith. Protestantsappeared
andwere representedby their attorney,JohnGamboa, The record closed on April 17.2009,
after the parties filed written argumentsin this case.
5.
Applicant hasmet all TABC requirementsfor holding thepem1itsrequestedfor the proposed
licensedpremisesat this location.
,¥
No unusualconditions or situations exist that would warrant refusal of the pemlits.
3.
~O16
SOAH DOCKET NO, 458-09-0896
PAGE 1~1
VI. CONCLUSIONSOF LAW
1
TABC hasjurisdiction over this matter underTEX.ALco. BEV. CODEANtf. cbs. 5, ~I, 28,
and 29, and §§ 6.01 and 11.46(a)(8). TEX.ALCO.BEY.CODEANN. § 1.01 letseq. I
2.
The State Office of Administrative Hearings has jurisdiction over all matters rel;ated to
conducting a hearing in this proceeding, including the preparation of a proposal for d,~cision
with findings of fact and conclusions of law, pursuant to TEX. GOV'T CODEANN. ch. 2003.
Proper and timely notice of the hearing was provided to all parties pursuant to the
Administrative Procedure Act, TEx. GOY'T CODEANN. ch. 2001, and 1 TEXt ADMIN. ':ODE §
155.401.
i
4.
Issuanceof the requestedpermits doesnot adverselyaffect the safety of the public, nor will
it adverselyaffect the genera]welfare, peace,or morals of the people or violate the!public
senseo'fdecency. TEX. ALCO.BEV.CODEANN. § 11.46(a)(8).
I
5,
Applicant's application for a mixed beveragepemlit anda mixed beveragelate hours,pemlit
for the premises located at 2495 S. Campus Court, Fort Worth, TarrantICounty, ,Texas,
should
be granted.
SIGNEDApril 27,2009.
I
',,-.
r-,
ADWNISTRATIVE LAW JUDGE
I
1"41017
STATE OFFICE OF ADMINISTRATIVE HEARINGS
FT. WORTH OFFICE
6777 Camp Bowie Blvd Suite 400
Phone: (817) 731-1733
Fax: (817) 377.3706
SERVICE LIST
AGENCY:
Alcoholic Beverage Commission, Tcxas (TABC)
STYLE/CASE:
ESCAPADECLUB CORP/ ESCAPADE2001
SOAR DOCKET NUMBER:
458-09-0896
REFERRING AGENCY CASE: 580538
STATE OFFICE OF ADMINISTRATIVE
ALJ TANY A COO PER
REPRESENTATIVE/ADDRESS
PARTIES
TIMOTHY GRIFFITH
ATTORNEY AT LAW
101E. PARK BLVD., SUITE 600
PLANO.TX 75074
(214) 585-2383 (PH)
(469)742-9521(FAX)
RESPONDENT
JOHN L. GAMBOA
ATTORNEY AT LA W
ACUFF & GAMBOA, LLP
2501 PARKVIEW DRIVE, SUITE 405
FORT WORTI"" TX 76102
(817) 885-8500 (PH)
(817) 885-8504 (FAX)
PROTESTANT
SANDRA K. PATTON
ATTORNEY
TEXAS ALCOHOLIC BEVERAGE COMMISSION
420 WEST 20TH STREET, 600
HOUSTON, TX 77008
(713) 426.7900 (PH)
(713) 426-7900 (W1()
(713) 426-7965 (FAX)
TEXAS ALCOHOLIC BEVERAGE qOMMIS~,ION
Page I of:!
04/27/2009
IlJO18
15:09 FAX
STEVEN H. SWA]~DER
ATTORNEY AT LAW
505 MAIN STREET, SUITE 250
FORT WORTH, T:K 76102
RESPONDENT
xc: Dockct Clcrk, SlatcOfficc of AdminislTIIlivc HcfJIings
LOU BRIGI-IT GEN'I:;;RAI.COVNSEL, TABC, fax No. 512-206.3498
P~gc2 or2

DOCKET NO. 580538 TEXAS ALCOHOLIC BEVERAGE

Transcription

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