Flowers v. Texas Alcoholic Beverage Commission ( 1989 )

OPINION ON MOTION FOR REHEARING

BROOKSHIRE, Justice.

Our original opinion of August 31, 1989, has been reported in 777 S.W.2d 781. That opinion, we think, is correct now and when written.

On September 29, 1989, the Appellant filed a late motion to supplement the record stating that the counsel for Appellant had requested of the clerk of the 172nd District Court that the record be completed for filing with the appellate court.

The motion sets out that the record in the cause included both the transcript from the district court and the statement of facts from the constitutional county court, which had been forwarded from the county court to the district court for review. The motion recites that, in the latter part of October, 1988, the appellant received a letter from the Clerk of the Ninth Court of Appeals stating that a statement of facts (1 vol.) had been forwarded to the court of appeals. There were, actually, two volumes of the statement of facts. Nevertheless, the Appellant contended in his motion that, reasonably and in good faith, he believed the record was complete.

We adhere to our prior opinion that it is the duty of the Appellant to cause a complete statement of facts to be filed with the Clerk of the Court of Appeals. TEX.R. APP.P. 53(k). Nevertheless, in an effort to afford a complete appellate review, we permitted a late filing of the statement of facts of the hearing conducted on June 9, 1988, before the County Court of Jefferson County. We have reviewed this additional Statement of Facts and have carefully read and analyzed the evidence given by Frank Joseph Flowers, Charles W. Bordeman, Thomas A. Walston, Carolyn C. Parmley, Katie Colley, Susan Laraine Cessac, J.S. Rayburn, Willard J. Hall, Sr., and Lori Leister. We decide that the record and Statement of Facts made before the County Judge sustains his findings and rulings.

Ample, if not voluminous, evidence of strong, probative force sustains the County Judge’s refusal to issue the license. Among other important matters, the record shows that, across the street, and within a short distance from the proposed X-Press Lounge, was located a night depository of a large utility company wherein bills were paid after regular office hours. Approximately $250,000. in currency per month was deposited therein. The nearby large utility company owned the building in which about 150 employees worked. Many of these were females. Many worked at night. Some of the tenants (not employees of the utility), in the utility company’s building, also worked at night and parked their cars in a parking lot across the street from the proposed X-Press Lounge. There was evidence, repeated from several witnesses, that the employers feared for the safety of their female employees who worked at night.

The First Federal Savings and Loan Association was across another street from the proposed lounge. It, likewise, had a night depository. There was a large downtown church within about one block from the proposed location of the lounge. The congregation met regularly on Sunday nights. In the late fall and winter seasons, the Sunday night services began after darkness fell. The church also provided a day care center for children. These children were taken on field trips. Some of these field trips were accomplished by the children walking down Pearl Street to the public library or the Beaumont Art Museum, walking past the site of X-Press.

The day care center for small children kept some of the children as late as 6:30 P.M. to accommodate their working mothers. During the winter season, at 6:00 or 6:30 P.M., these working mothers necessarily had to pick up their children after dark. The record compellingly reflects that some of the church officials were very concerned that the existence of the X-Press Lounge would discourage the penitents of the congregation from attending the evening services held after dark. The congregation of the church involved were shown to be made up of many elderly members. One witness testified that over forty percent of this congregation were of ages 60 years or more. During these evening or night church services, there had been vandalism of automobiles that were parked in the parking lot of the church. Throughout the years, there were numerous committee meetings and board meetings that were held at the church, especially on Wednesday nights. To summarize, the evidence showed that the establishment of the X-Press Lounge would probably adversely affect the activities of the church. This church had a membership of approximately 1200 to 1400 penitents.

The director of the child care center, Ms. Parmley, testified that there were 135 children of tender age in the program. Some of the children were quite young. One four-week-old child attended. The average age of the children is from 2 to 5 years. Most of these very young children were picked up by 6:00 o’clock, or, by the latest, 6:30 P.M. Mr. Flowers reserved the right to operate his bar starting at 5:00 P.M. or earlier. There was evidence before the county judge and before the district judge that the traffic flow in the block was congested and that there would be added congestion of traffic.

Furthermore, there was a safety factor in carrying the day care children back and forth and in picking up the children.

Mr. Flowers testified that his present intention was to open at 8:00 o’clock at night, preserving the right, however, to open at an earlier hour. The lounge was to conduct business until 2:00 o’clock A.M.

It is noteworthy that the Appellant never discharged his duty to file the correct, complete statement of facts with our Clerk. The only properly and timely filed statement of facts was the one reflecting the hearing on September 6, 1988, before the presiding judge of the 172nd District Court of Jefferson County. This brief statement of facts, consisting of only 17 pages, is merely a record of the arguments of the attorneys. The same contains no evidence or testimony. TEX.R.APP.P. 53(k) manda-torily provides that it is the Appellant’s duty to cause a statement of facts to be filed with the Clerk of the Court of Appeals. Appellant failed in his duty to file with our Clerk the only meaningful and relevant Statement of Facts, which was the statement of facts covering and reporting the June 9, 1988, hearing before the County Judge of Jefferson County. This statement of facts, made before the County Judge, was not filed until November 8, 1989. Hence, the meaningful, crucial statement of facts was not timely filed. TEX.R. APP.P. 50(d), 53, 54(a).

The dissent places major reliance on State v. Peeler, 200 S.W.2d 874 (Tex.Civ. App.—Fort Worth 1947, no writ). Peeler, supra, cites a section of the then Penal Code which is not now governing of our record. Furthermore, the dissenter is simply in error in reciting that establishments serving alcoholic beverages are closer to the First United Methodist Church and the Day Care Center than the proposed location of the Appellant’s bar. There simply is no discrimination shown in this record against the Appellant. The dissenter’s cavalier statement that “[t]he concerns about the night depositories, the day care center, the late-working employees, and the church goers are inherent in any downtown location”, is simply overbroad and actually deeply erroneous. We are not aware of any 24-hour soup kitchen for transient persons or homeless persons or a counseling center for heroin addicts near the Gulf States Utilities Company, the First United Methodist Church or the Day Care Center. We doubt that the 24-hour soup kitchen or counseling center for heroin addits would serve alcoholic beverages. Inter alia, we conclude that there was substantial evidence and testimony of strong probative force to sustain the Findings of Fact and Conclusions of Law signed on August 10, 1988, by the County Judge and especially that the proposed X-Press Bar “is likely to constitute a threat to the general welfare, health, peace and safety and sense of decency of the people.”

In summary, after reviewing the entire record (including the supplement) before us, we approve and affirm the actions of the County Court and the actions of the District Court below.

AFFIRMED.