Texas Judiciary Online - HTML Opinion

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Opinion issued May 31, 2007

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-05-01092-CV

TEXAS = ALCOHOLIC=20 BEVERAGE COMMISSION, Appellant

JESUS = RODRIGUEZ=20 D/B/A LA GAVIOTA NITE CLUB, Appellee

On = Appeal from the=20 189th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2005-63301

MEMORANDUM OPINION=20

Appellant, = the Texas=20 Alcoholic Beverage Commission (TABC), challenges the judgment of = the trial=20 court, which reversed an order by the Honorable Robert Eckels, = Harris=20 County Judge, who denied the renewal applications for = wine-and-beer and=20 on-premise late-hours licenses to appellee, Jesus Rodriguez d/b/a = La=20 Gaviota Nite Club (the night club).^{=20
(1)} In its single issue, the TABC contends that the = trial court=20 impermissibly substituted its judgment for that of the county = judge and=20 therefore exceeded the parameters of the substantial-evidence = standard and=20 scope of review. We reverse.

Background

The night club is located at = 8011=20 Harrisburg, near its intersection with Navigation in Houston, on = land=20 owned by Rodriguez. Rodriguez filed applications with the TABC to = renew=20 his licenses in May 2004. The TABC denied his applications in = October=20 2004, based on protests received from the community. The TABC = dismissed=20 the action from the TABC docket without prejudice and referred the = applications to Harris County Judge Robert Eckels, who then = referred them=20 to a

special master.

The special master conducted a = hearing in=20 June 2005 and issued a report in August 2005, recommending that = renewals=20 be denied on the grounds that the "the place and manner in which=20 [Rodriguez] may conduct his business warrants a refusal of his=20 [a]pplication based on the general welfare, health, peace, morals, = safety,=20 and sense of decency of the people." See Tex. Alco. Bev. = Code=20 Ann. =A7 61.42(a)(3) (Vernon Supp. 2006). The master supported = this=20 conclusion of law with nine fact findings, and his report lists = the=20 parties who appeared at the hearing.

In addition to Rodriguez and = the night=20 club, who appeared through counsel, those at the hearing included = an agent=20 of the TABC, an assistant City of Houston attorney appeared on = behalf of=20 Houston Mayor Bill White, as well as the president of the Magnolia = Park/Pineview Civic Association. The report identifies seven = witnesses,=20 who included police officers and a representative of the Houston = Mayor's=20 Citizens' Assistance Office.^{=20
(2)}

When Judge Eckels adopted the = special=20 master's report in October 2005, the decision became the ruling of = the=20 TABC and thus subject to judicial review under the Administrative=20 Procedure Act (APA), Tex. Gov't Code Ann. =A7 2001.171 (Vernon = 2000).=20 See Lindsay v. Sterling, 690 S.W.2d 560, 562 (Tex. 1985)=20 (construing former version of APA, Tex. Rev. Civ. Stat. Ann. = 6252-13a, =A7=20 19(a)); Tex. Alco. Bev. Code Ann. =A7 61.34(a), 11.67(a)-(b) = (Vernon 1995).=20

The night club's motion for = rehearing=20 challenged three of the findings in the special master's report = adopted by=20 Judge Eckels, but did not specifically challenge the conclusion = that=20 renewals be denied pursuant to section 61.42(a)(3) of the = Alcoholic=20 Beverage Code, which considers "the general welfare, health, = peace,=20 morals, safety, and sense of decency of the people." See = Tex.=20 Alco. Bev. Code Ann. =A7 61.42(a)(3). After the night club's = motion for=20 rehearing was overruled as a matter of law, the TABC sought = judicial=20 review in the trial court, which reversed the county's judge's = ruling and=20 ordered the nightclub's applications remanded to the TABC. This = appeal=20 challenges that ruling.

This Court's and the Trial Court's Review of TABC=20 Order

The TABC contends that the = trial court=20 erred by reversing the order of the TABC, acting through the = county judge,=20 and by remanding the applications to the TABC, because substantial = evidence supports the order. We agree.

A. "Place and Manner" = of=20 Conducting Business Rationale

Section 61.42 of the Alcoholic = Beverage=20 Code lists mandatory grounds for refusal to issue a license to a=20 distributor or retailer. Tex. Alco. Bev. Code Ann. =A7 61.42. = Pursuant to=20 section 61.42(a)(3), on which the ruling challenged here is based, = the=20 county judge "shall refuse to approve an application . . . if he = has=20 reasonable grounds to believe and finds that the place and manner = in which=20 the applicant . . . may conduct his business warrants a refusal of = a=20 license based on the general welfare, health, peace, morals, = safety, and=20 sense of decency of the people." Tex. Alco. Bev. Code Ann. =A7 = 61.42(a)(3).=20 An applicant who is denied an application may appeal to the = district court=20 of the pertinent county "under the substantial evidence rule." = Tex. Alco.=20 Bev. Code Ann. =A7 61.34(a), 11.67(a)-(b) (Vernon 1995); = see Tex.=20 Gov't Code Ann. =A7 2001.174(1)-(2)(E) (Vernon 2000).

B. "Substantial = Evidence"=20 Review

The substantial evidence rule = governs our=20 review of both the trial court's judgment and the final order of = the TABC,=20 acting through Judge Eckels. Four = Stars Food=20 Mart v. Tex. Alcoholic Beverage Comm'n, 923 S.W.2d 266, 269 = (Tex.=20 App.--Fort Worth 1996, no writ). The test in = applying=20 this rule "is whether the evidence as a whole is such that = reasonable=20 minds could have reached the same conclusion that the agency must = have=20 reached in order to justify its action." Tex. Alcoholic = Beverage=20 Comm'n v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990). Whether=20 substantial evidence supports an administrative decision is a = question of=20 law. Tex. Dep't of Public Safety v. Alford, 209 S.W.3d = 101, 103=20 (Tex. 2006). We direct our review to whether the county judge's = order is=20 reasonable, rather than whether it is correct, and we may presume = that=20 substantial evidence supports the special master's findings, = inferences,=20 conclusions, and decisions, as adopted by the county judge. = See Garza=20 v. Tex. Alcoholic Beverage Comm'n, 138 S.W.3d 609, 613 (Tex.=20 App.--Houston [14th Dist.] 2004, no pet.); Four Stars, = 923 S.W.2d=20 at 269. To warrant the trial court's having set these aside, the = night=20 club had to establish the lack of substantial evidence to support = them.=20 See Four Stars, 923 S.W.2d at 269-70. Regardless of the = county=20 judge's stated reasons for its order, we may uphold the decision = if there=20 is any valid basis for it in the record. Garza, 138 = S.W.3d at=20 613.

The trial court's role in = determining, in=20 a suit for judicial review, whether substantial evidence supports = the=20 county judge's ruling differs from and is more limited than when = it=20 conducts a trial de novo. Four Stars, 923 S.W.2d at 269 (citing City of San Antonio v. Tex. = Water=20 Comm'n, 407 S.W.2d 752, 756 (Tex. 1996)). Substantial = evidence need=20 only amount to more than a mere scintilla; proof by preponderance = of the=20 evidence is not necessary. See Garza, 138 S.W.3d at 613 = (citing=20 Tex. Health Facilities v. Charter Med.-Dallas, 665 S.W.2d = 446,=20 453 (Tex. 1984)). Accordingly, the evidence from the = administrative=20 proceeding may satisfy the substantial-evidence test even if the = evidence=20 preponderates against the county judge's decision. Id.; = Four=20 Stars, 923 S.W.2d at 269 (citing Haynes v. City of = Abilene,=20 659 S.W.2d 638, 640 (Tex. 1983)). Neither this Court nor the trial = court=20 may weigh the evidence independently or substitute its judgment = for that=20 of the county judge. See Sierra, 784 S.W.2d at 361. The = burden is=20 on the licensee to show that substantial evidence did not support = the=20 administrative order, Four Stars, 923 S.W.2d at 269-70, = which may=20 be reversed only if the challenging party establishes that it = lacked any=20 reasonable basis. See Mireles v. Tex. Dep't of Pub. = Safety, 9=20 S.W.3d 128, 131 (Tex. 1999).

C. Substantial Evidence = Analysis

The dispositive issue in a = proceeding=20 that seeks denial of renewal of an application brought pursuant to = section=20 61.42(a)(3) is whether the county judge "has reasonable grounds to = believe=20 and finds that the place and manner in which the applicant . . . = may=20 conduct his business warrants a refusal of a license based on the = general=20 welfare, health, peace, morals, safety, and sense of decency of = the=20 people." Tex. Alco. Bev. Code Ann. =A7 61.42(a)(3). No set formula = determines the "place and manner" determination under section = 61.42(a)(3),=20 by which the county courts exercise great discretion pursuant to=20 legislative grant. See Four Stars, 923 S.W.2d at = 272.

1. Evidence presented to=20 Master

Rodriguez not only owns, but = manages the=20 night club, and he works there every day. The nightclub opens = daily at 5=20 p.m. Closing is at 2 a.m. on Monday through Wednesday, at 3 a.m. = on=20 Thursdays and Sundays, and at 4 a.m. on Fridays and Saturdays. = Rodriguez=20 employs one part-time server on the weekend. He employs one = security=20 officer on Thursdays and Sundays and two security officers on = Fridays and=20 Saturdays, but he serves as security officer himself from Monday = through=20 Wednesday. He personally cleans up the empty beer bottles and = trash that=20 accumulate in the club's parking lot personally and on a daily = basis. He=20 described the area as commercial, but acknowledged that a = residence is=20 directly behind the nightclub and that his customers park "all = along" 80th=20 Street and on Avenue C, where he also picks up trash.

Rodriguez denied that any = fights occurred=20 at the night club during the previous year and stated that he had = no=20 memory of a stabbing alleged to have occurred on May 29, 2004. He = denied=20 serving any alcohol after 2 a.m., when he serves only nonalcoholic = beer,=20 mineral water, and soft drinks, but acknowledged that customers = might=20 arrive in an intoxicated state from other bars that have closed. = Rodriguez=20 had recently hired a new security company and indicated to the = master that=20 he would close the night club at 2 a.m. if his application were=20 granted.

A resident whose home is a = block away=20 from the night club described his concerns with loud music, = traffic, and=20 his fear for the safety of his children because of speeding cars = leaving=20 the club parking lot. Another life-long resident of the area = stated that=20 she had observed "people getting out of the La Gaviota Night = Club[,]=20 speeding with loud music and abusive language[,] and urinating = outside,=20 [in] daylight [sic]." A third resident stated that she narrowly = avoided a=20 collision with a vehicle that had pulled out quickly from the = night club=20 lot, and that she and her family "simply cannot and do not drive = by the=20 [night club] on Friday or Saturday nights."

A Houston Police officer who = testified at=20 the hearing before the special master stated that he had = participated in=20 27 arrests that occurred in the parking lot of the night club on = the night=20 of April 16 and early morning of April 17, 2004. Of these arrests, = 23 were=20 for public intoxication, two were on outstanding warrants, one was = for=20 solicitation of sale of alcohol, and another was for possession of = a=20 controlled substance. The officer who patrolled the area regularly = stated=20 that he had responded to between 20 and 30 calls concerning the = night club=20 during the year preceding the applications for renewal. =

2. TABC Findings Challenged = by Night=20 Club

In its motion for = rehearing to=20 the county judge and in the trial court, the night club challenged = the=20 following findings by the TABC, acting through the county=20 judge:

6. On April 17, 2004, HPD vice = officers=20 entered La Gaviota Nite Club at 3:00 AM and arrested 23 patrons = for Public=20 Intoxication. Another patron was arrested for Possession of a = Controlled=20 Substance (cocaine). An employee was arrested for Solicitation of = an=20 Alcoholic Beverage by an Employee.

7. An HPD officer who regularly = patrols=20 near Applicant's premises has received 20-30 Calls for Service to = Gaviota=20 Nite Club within the last year. Some of these calls led to the = filing of=20 criminal charges against club patrons.

8. On May 29, 2004, a patron = was stabbed=20 inside La Gaviota Nite Club.

The night club challenged these = findings=20 by attempting to impeach, discredit, and dismiss consideration of = the=20 evidence presented to the county judge on several different = grounds,=20 including hearsay challenges and discovery-based objections. The = club did=20 not, however, focus on the county judge's ultimate "place and = manner"=20 conclusion not to renew the night club's licenses under section=20 61.42(a)(3) of the Alcoholic Beverage Code.

With respect to the sixth = finding, the=20 night club argued that public intoxication was not a violation of = the=20 Code; that, though sale of alcohol to an intoxicated person is a = violation=20 of the Code, there was no admissible evidence that the offense = occurred;=20 and that it was never shown that the cocaine arrest or the = solicitation of=20 alcohol arrest resulted in a conviction. The night club asserted = similar=20 objections to the eighth finding and generally argued that the = number of=20 calls was not excessive, that there were actually fewer calls, or, = in the=20 alternative, that the calls were not probative of conduct that = warranted=20 denying the night club's application. The night club dismissed the = eighth=20 finding, that a stabbing occurred on the premises, based on its=20 hearsay-within-hearsay objections and relied on Rodriguez's lack = of any=20 recollection that a stabbing occurred.

3. Substantial Evidence = Supports=20 "Place and Manner"Ruling

By reversing the ruling of the = TABC,=20 acting through the county judge, the trial court effectively = determined=20 that the TABC lacked any reasonable basis, see Mireles, 9 = S.W.3d=20 at 131, to deny the night's club's requests to renew its = applications for=20 a wine and beer license and an after-hours license because "the = place and=20 manner in which [Rodriguez] . . . may conduct his business = warrants a=20 refusal of a license based on the general welfare, health, peace, = morals,=20 safety, and sense of decency of the people." See Tex. = Alco. Bev.=20 Code Ann. =A7 61.42(a)(3). We cannot agree that the county judge = lacked a=20 reasonable basis for this determination.

Section 61.42(a)(3) authorized = the county=20 judge to refuse to renew the night club's applications because the = place=20 and manner in which Rodriguez "may" conduct his business warranted = refusal=20 because of the general welfare, health, peace, morals, safety, and = sense=20 of decency of the people. By employing the word "may," the statute = does=20 not require a finding that Rodriguez conducted the business in a = place or=20 manner that warranted the refusal, but only that the manner in = which he=20 might conduct it warranted refusal. See id.

It is undisputed that the night = club=20 remained open until at least 2 a.m. early in the week, and until 3 = or 4=20 a.m. later in the week and on weekends. It is also undisputed, = through=20 Rodriguez's own testimony, that customers who arrived at the night = club=20 after other clubs closed could be intoxicated, though he denied = serving=20 alcohol to them. Rodriguez denied knowledge of any fights at the = club and,=20 in response to a direct question from the special master = concerning the=20 stabbing inside the night club on May 29, 2004, also denied = knowledge of=20 that incident. Yet, Rodriguez had only one part-time server and = limited=20 security personnel and also claimed that he was present at the = night club=20 daily to manage it. In determining, in the eighth finding, that = the=20 stabbing had occurred, the special master may have reconciled = Rodriguez's=20 conflicting testimony based on a credibility determination that we = may not=20 disturb. See Sierra, 784 S.W.2d at 361. A stabbing on the = premises, coupled with Rodriguez's testimony acknowledging that = his=20 late-arriving customers may have become intoxicated elsewhere is=20 substantial evidence of a manner of operating the night club in = disregard=20 of the general welfare, health, peace, morals, safety, and sense = of=20 decency of the public. See Four Stars, 923 S.W.2d at 271. = Customers who might already be intoxicated may have also = occasioned the=20 complaints, by neighboring residents, of noise, loud music, = speeding cars,=20 abusive language, and urinating in public.

Rodriguez did not dispute the = noise from=20 the night club that formed the basis of the complaints of several=20 residents, except through the testimony of a single resident who = lived=20 directly behind the night club and had "no complaints." But, by=20 acknowledging that his customers parked not only in his lot, but = on=20 neighboring streets Rodriguez underscored residents' complaints = concerning=20 excessive traffic. The same testimony concedes the presence of = abundant=20 trash, including beer bottles. Despite Rodriguez's testimony that = he felt=20 compelled to clean up the trash and picked it up daily, the = special master=20 could reasonably have determined that Rodriguez nonetheless = enabled the=20 conditions that generated the trash, not only in his lot, but on = the=20 neighboring streets. Given Rodriguez's testimony that he refused = to serve=20 alcohol after 2 a.m., though he remained open until 3 or 4 a.m. on = weekends, the special master may have reasonably found that the = night club=20 fostered consumption of alcohol that late-arriving customers may = have=20 brought to the area of the night club, where they consumed it and=20 discarded the containers, not only in his lot, but on the = surrounding=20 streets, in disregard of the general welfare, health, peace, = morals,=20 safety, and sense of decency of the public. Alternatively, the = master may=20 have determined, based on a credibility determination, that = Rodriguez=20 actually did provide alcohol after 2 a.m.

As our sister court emphasized = in=20 Four Stars, the "general welfare, health, peace, morals, = safety,=20 and sense of decency of the people" factors of section 61.42(a)(3) = of the=20 Alcoholic Beverage Code permit consideration of conduct that falls = short=20 of constituting criminal conduct resulting in a conviction. = See=20 923 S.W.2d at 271-72 (referring to large scale gang = gatherings).=20 Accordingly, the arrests referred to by the officers who testified = before=20 the special master also constitute substantial evidence that = reasonably=20 supports not only the special master's sixth and seventh findings, = but=20 also the master's ultimate conclusion, adopted by the TABC, acting = through=20 the county judge, that the place and manner in which Rodriguez = "may"=20 conduct his business warranted refusal to renew his applications = because=20 of the general welfare, health, peace, morals, safety, and sense = of=20 decency of the people.

Having thus concluded that = substantial=20 evidence, as the Government Code defines that term, supports the = TABC's=20 refusal to renew the night club's applications, we sustain the = TABC's sole=20 issue.

Conclusion

We reverse the judgment of the = trial=20 court and remand the cause.

Sherry Radack

Chief Justice

Panel consists of Chief Justice = Radack=20 and Justices Jennings and Bland.

1. The record reflects that the night club = did not=20 serve wine and served only beer, including nonalcoholic beer, and = mineral=20 water and soft drinks.=20

2. A representative from the office of = County=20 Commissioner Sylvia Garcia also appeared to submit a letter, the = contents=20 of which do not appear in the record. The record merely reports = that the=20 letter was presented, and the trial court accorded it "zero = weight."=20

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0054_01C7A3C8.D166CB30--