Fort Worth PR's, Inc. v. Texas Alcoholic Beverage Commission ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00393-CV
FORT WORTH PR’S, INC. APPELLANT
V.
TEXAS ALCOHOLIC BEVERAGE APPELLEE
COMMISSION
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In a single issue, Appellant Fort Worth PR’s, Inc. challenges the trial
court’s judgment affirming the order of Appellee Texas Alcoholic Beverage
Commission (TABC) adopting the Proposal for Decision of the State Office of
Administrative Hearings judge that Fort Worth PR’s violated Texas Alcoholic
Beverage Code section 106.13 by knowingly serving a minor an alcoholic
beverage on April 12, 2009. See Tex. Alco. Bev. Code Ann. § 106.13 (West
1
See Tex. R. App. P. 47.4.
2007). Fort Worth PR’s does not dispute the fact that a sale of an alcoholic
beverage to a minor occurred at Fort Worth PR’s on April 12, 2009, but argues
that the affirmative ―safe harbor‖ defense set forth in Texas Alcoholic Beverage
Code section 106.14 applies. See id. § 106.14 (West 2007). This defense
provides that the actions of an employee in serving an alcoholic beverage to a
minor are not attributable to the employer (like Fort Worth PR’s) if (1) the
employer requires its employees to attend a commission-approved seller training
program; (2) the employee has actually attended such a training program; and
(3) the employer has not directly or indirectly encouraged the employee to violate
such law. Id.
Conflicting evidence was introduced at the hearing before the State Office
of Administrative Hearings judge on whether Christina Kallmeyer—the
server/seller employed by Fort Worth PR’s whose sale of an alcoholic beverage
to a minor formed the basis of the TABC’s disciplinary action at issue––had
actually attended a commission-approved seller training program.2 A copy of the
card or certificate that Kallmeyer would have received upon completion of a
commission-approved seller/server training program was not offered or admitted
into evidence at the hearing before the judge at the State Office of Administrative
Hearings. Based on the conflicting evidence, the State Office of Administrative
Hearings judge issued finding of fact number 11 that ―[n]o evidence was
2
Mr. Gilmore, the general manager at Fort Worth PR’s, testified that all
personnel associated with serving alcoholic beverages at Fort Worth PR’s had
received seller/server training and certification. One of the officers for TABC who
participated in the sting operation at Fort Worth PR’s that led to the disciplinary
action at issue testified that per TABC’s computer records Kallmeyer was not
seller/server certified. Neither Kallmeyer nor any other Fort Worth PR’s
employee beside Mr. Gilmore testified.
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produce[d] to confirm that either of Respondent’s [Fort Worth PR’s] bartenders
that were on duty on April 12, 2009, had attended a TABC-sanctioned
seller/server training course.‖ The State Office of Administrative Hearings judge
issued a Proposal for Decision finding that the violations had occurred and
recommending that Fort Worth PR’s permits be suspended for thirty days or that
a fine of $9,000 be paid in lieu of any suspension. The TABC issued an order
adopting the Proposal for Decision and Fort Worth PR’s sought judicial review in
a Tarrant County district court. After the district court signed a final judgment
affirming the TABC’s order, Fort Worth PR’s perfected this appeal.
We review a TABC order under the substantial evidence test. Id.
§ 11.67(b); Tex. Alcoholic Beverage Comm’n v. Sierra, 784 S.W.2d 359, 360
(Tex. 1990). Substantial evidence need only be more than a scintilla. Garza v.
Tex. Alcoholic Beverage Comm’n, 138 S.W.3d 609, 613 (Tex. App.––Houston
[14th Dist.] 2004, no pet.). Whether substantial evidence exists in support of an
administrative decision is a question of law. Tex. Dep’t of Pub. Safety v. Alford,
209 S.W.3d 101, 103 (Tex. 2006). In determining whether substantial evidence
exists, the reviewing court may not invade the factfinding authority of the agency.
State Banking Bd. v. Allied Bank Marble Falls, 748 S.W.2d 447, 448–49 (Tex.
1988).
Here, in light of the conflicting evidence on the second element of the safe
harbor defense––whether the employee has actually attended such a training
program––and the absence in the record of a card or certificate that either of Fort
Worth PR’s bartenders on duty on April 12, 2009 would have received upon
completion of a commission-approved seller training program, we cannot say that
substantial evidence does not exist supporting the TABC order, including finding
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of fact number 11 that that ―no evidence was produce[d] to confirm‖ that Fort
Worth PR’s bartenders on duty on April 12, 2009 had attended a TABC-
sanctioned seller/server training course. See, e.g., 20801, Inc. v. Parker, 249
S.W.3d 392, 394 (Tex. 2008) (recognizing employer bears burden of proof on
first two elements of section 106.14’s safe harbor defense); Tex. Dep’t of Pub.
Safety v. Sanchez, 82 S.W.3d 506, 511 (Tex. App.––San Antonio 2002, no pet.)
(recognizing it is incumbent on the administrative law judge to determine the
credibility of witness testimony).
We therefore overrule Fort Worth PR’s sole issue.3 We affirm the trial
court’s judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: June 23, 2011
3
Fort Worth PR’s contends that it was not required to plead the affirmative
safe harbor defense in the administrative hearing in order to raise it in the judicial
review it sought before the trial court. We need not, and do not, decide that issue
here; assuming the safe harbor defense was properly raised, we nonetheless for
the reasons set forth herein determine that the TABC order, including the finding
of fact that that ―no evidence was produce[d] to confirm‖ that Fort Worth PR’s
bartenders on duty on April 12, 2009 had attended a TABC-sanctioned
seller/server training course, is supported by substantial evidence.
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