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State Office of Administrative Hearings Cathleen Parsley Chief Administrative Law Judge March 29, 2016] VIA REGULAR MAIL Sherry Cook Administrator Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin, Texas 78731 RE: SOAH Docket No. 458-16-1147 Dear Ms. Cook: Please find enclosed a Proposal for Decision m this case. It contains my recommendation and underlying rationale. Exceptions and replies may be filed by any party in accordance with 1 TEX. ADMIN. CODE§ 155.507(c), a SOAH rule which may be found at www.soah.state.tx.us. Sincerely, LINDY~DRICKS ADMJ!\ISTRA TIVE LAW JUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS LH/SJP Enclosure xc Ra mon a Perry, Texas Alcoholic Beverage Commission, 427 W. 20'h Stre et , Houston, TX 77 008 - VIA REGULAR MAIL Emily Helm, General Counsel, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX 7873 l- VIA REGULAR MAIL Ju dith Kennison, Senior Attorney, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX 78731 - VIA REGULAR MAIL Richard Kaplan, Attorney, 11 Greenway Plaza, Suite 1400, Houston, TX 77046 -VIA REGULAR MAIL Jeremy Roberts, Attorney, 11 Greenway Plaza, Suite 1400, Houston, TX 77046 -VIA REGULAR MAIL Sarah Longlois, Attorney, 58 17 Westheimer, Suite 1200, Houston, TX 77057 -VIA REGULAR MAIL Linda McDowell, 13835 Saint Marys LaneHouston, TX 77079 -VIA REG ULAR MAIL Judge Ryan Patrick, 13911 Kingsride Lane, Houston, TX 77079 -VIA REG ULAR MAIL Summer Burke, 13815 Myrtlea, Houston, TX 77079 -VIA REG ULA R MAIL Representative Jim Murphy, PO Box 2910, Austin, TX 78768 -VIA REGULAR MAIL 2020 North Loop West, Suite 111, Houston, Texas 77018 713.957.0010 (Main) 713.812.1001 (Fax) www.soah.state.tx.us

State Office of Administrative Hearings - TABC Home Page · BEFORE THE STATE OFFICE . OF . ADMINISTRATIVE HEARINGS . PROPOSAL FOR DECISION Memorial Beverage LLC (Respondent or Twin

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State Office of Administrative Hearings

Cathleen Parsley Chief Administrative Law Judge

March 29 2016]

VIA REGULAR MAIL Sherry Cook Administrator Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147

Dear Ms Cook

Please find enclosed a Proposal for Decision m this case It contains my recommendation and underlying rationale

Exceptions and replies may be filed by any party in accordance with 1 TEX ADMIN CODEsect 155507(c) a SOAH rule which may be found at wwwsoahstatetxus

Sincerely

~~~ LINDY~DRICKS ADMJISTRA TIVE LAW JUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS

LHSJP Enclosure xc Ramona Perry Texas Alcoholic Beverage Commission 427 W 20h Street Houston TX 77008 - VIA

REGULAR MAIL Emily Helm General Counse l Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 7873 l- VIA REGULAR MAIL Jud ith Kennison Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 - VIA REGULAR MAIL Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA REGULAR MAIL Jeremy Roberts Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA REGULAR MAIL Sarah Longlois Attorney 58 17 Westheimer Suite 1200 Houston TX 77057 -VIA REGULAR MAIL Linda McDowell 13835 Saint Marys LaneHouston TX 77079 -VIA REG ULAR MAIL Judge Ryan Patrick 13911 Kingsride Lane Houston TX 77079 -VIA REG ULAR MAIL Summer Burke 13815 Myrtlea Houston TX 77079 -VIA REG ULA R MAIL Representative Jim Murphy PO Box 2910 Austin TX 7876 8 -VIA REGULAR MAIL

2020 North Loop West Suite 111 Houston Texas 77018 7139570010 (Main) 7138121001 (Fax)

wwwsoahstatetxus

DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE sect COMMISSION sect

Jurisdictional Petitioner sect sect

SPRING BRANCH INDEPENDENT sect SCHOOL DISTRICT sect LINDA MCDOWELL RYAN sect PATRICK DANA EUBANKS AND sect SUMMER BURKE sect

Protestants sect sect

v sect sect

RENEWAL APPLICATION OF sect MEMORIAL BEVERAGE LLC sect DBA TWIN PEAKS sect PERMIT NOS MB854255 FB LB PE sect HARRIS COUNTY TEXAS sect

sect Respondent sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

PROPOSAL FOR DECISION

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Pennit and Beverage

Cattage Petmit for the premises known as Twin Peaks located at 11335 Katy Freeway 1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

1 The Katy Freeway is also known as Interstate I 0

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Peny Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden of proof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code) sect 1 l 46(a)(8) provides that a renewal pern1it may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

T ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

I Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 7 15 am However

between 3 00 and 3 15 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be harmed by customers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE sect COMMISSION sect

Jurisdictional Petitioner sect sect

SPRING BRANCH INDEPENDENT sect SCHOOL DISTRICT sect LINDA MCDOWELL RYAN sect PATRICK DANA EUBANKS AND sect SUMMER BURKE sect

Protestants sect sect

v sect sect

RENEWAL APPLICATION OF sect MEMORIAL BEVERAGE LLC sect DBA TWIN PEAKS sect PERMIT NOS MB854255 FB LB PE sect HARRIS COUNTY TEXAS sect

sect Respondent sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

PROPOSAL FOR DECISION

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Pennit and Beverage

Cattage Petmit for the premises known as Twin Peaks located at 11335 Katy Freeway 1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

1 The Katy Freeway is also known as Interstate I 0

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Peny Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden of proof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code) sect 1 l 46(a)(8) provides that a renewal pern1it may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

T ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

I Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 7 15 am However

between 3 00 and 3 15 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be harmed by customers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Peny Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden of proof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code) sect 1 l 46(a)(8) provides that a renewal pern1it may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

T ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

I Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 7 15 am However

between 3 00 and 3 15 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be harmed by customers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

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11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

I Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 7 15 am However

between 3 00 and 3 15 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be harmed by customers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 7 15 am However

between 3 00 and 3 15 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be harmed by customers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occun-ed on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons of other restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with TABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

While walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAI-1 DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the corner of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

5 Judge Ryan Patrick2

2 The Honorable Ryan Patrick is the judge of the 177 District Comt in Harris County Texas but was testifying as an individual protestant representing only himself

Judge Patrick is the president of Nottingham Association which consists of 247 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March 2014

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

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community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

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Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBISD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 10

by the City of Houston and TABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by TABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are TABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

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community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

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Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the T ABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 11 15 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with T ABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from TABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the community because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the permit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business wairnnts a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

TABC v Twenty Wings LTD et al 112 SW3d 647650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App - Ft Wo11h 994 rehg overruled)

3

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

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community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISDs alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the TABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

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11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Nevertheless without permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

they have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEi

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III FINDINGS OF FACT

I Memo1ial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke (collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 TABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated on the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner of operation

IV CONCLUSIONS OF LA v

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters I 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

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SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Codesect l l46(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect l 46(a)(8)

SIGNED March 29 2016

AllIINISTRATlE LAW JUDGE SlATE OFflCE OF ADllISTRTIYE llttRliGS

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1528 FAX i138121001 lilJ 00010023

STATE OFFICE OF ADMINISTRATIVE HEARINGS North Loop Office Park

2020 North Loop West Suite 111 Houston Texas 77018 Phone (713) 957-0010

DATE

NUMBER OF PAGES INCLUDING THIS COVER SHEET

SOAH DOCKET NO

REGARDING

FROM

May 13 2016

_ll

458-16-1147

Amended PFD

Lindy Hendricks

7138627478

Sherry Cook Emily Helm and 5122063498 Judith Kennison TABC

Sarah Lan lois Attome for Protestants 7139606025

Richard Kaplan Attorney for Respondent 7139615341

Ryan Patrick Protestant 2816056681

The information contained in this facsimile message is privileged and confidential information intended only for the use of the above-named recipients) or the individual or agent responsible to deliver it to the intended recipient You are hereby notified that any dissemination disttibution or copying of this communication ts strictly prohibited If you have received this communication in error please fmmediately notify us by telephone and return the original message to us at the above address via the US Postal Service Thank you

NOTE IF ALL PAGES ARE NOT RECEIVED PLEASE CONTACT Melissa Riley AT 713-957-0010

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1528 FAX 7138121001 Ii] 00020023

State Office ofAdministrative Hearings

Lesli G Ginn Chief Administrative Law Judge

May 13 2016

middot Sherry Cook VIA FACSIMILE Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731

RE SOAH Docket No 458-16-1147 Texas Alcoholic Beverage Commission v Memorial Beverage LLC dba Twin Peaks

Dear Ms Cook

A proposal for Decision was issued in this matter on March 29 2016 with a recommendation that Respondents permit be renewed On April 15 2016 Ryan Patrick (Protestant) filed exceptions to the Proposal for Decision On April 29 2016 Respondent filed a reply to Protestants exceptions

Pursuant to State Office of Administrative Hearings Rule 155507(d) the Administrative Law Judge (ALJ) has reviewed all of Protestants exceptions and Respondents replies and notifies the referring agency and parties whether the ALJ recommends any changes to the Proposal for Decision (PFD) as follows

Protestants Exception to Testimony in Section 11C5

Protestant filed an Exception to the characterization of testimony regarding the number of homes and the name of the homeowners association After further review of the evidence the ALJ changes the PFD to reflect the testimony that there are 152 to 157 homes in Nottingham IV

Protestants Exception to Testimony in Section D paragraph F

Mr Rosa owner and chief operating officer of Twin Peaks testified that Twin Peaks modified Happy Hour times fo an effort to work with the

1 HOM_2 at 25341

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1528 FAX 7138121001 lilJ 00030023

community The ALJ does not recommend any changes to the summary of testimony in Section D paragraph F

Protestants Exception to the Analysis Section E

Protestant alleges a violation of Texas Administrative Code sect3313(5)(e) regarding the posting of a sign that is required before an original permit is issued This section does not apply to the renewal application and was not alleged in the Notice of Hearing Nevertheless the evidence shows the sign had been posted in the window of Twin Peaks for more than a year prior to the issuance of its original license The ALJ does not recommend any changes to Section E of the Analysis

Protestants Exception Regarding License Being Initially Denied

The Agreement with the City was entered into prior to the issuance of original permit and the evidence shows Respondent is operating in compliance with the Agreement with the City as a restaurant The evidence is insufficient to show Respondents license was irutially derued

Protestants Exception to the Analysis Regarding Place or Manner

The ALJ finds the evidence is insufficient to show any student sitting the in the library of Wilchester Elementary School with a wall-wide picture window view down Britoak Lane was harmed or offended by seeing a server dressed in her outfit walk into Twin Peaks

Findings of fact in a decision or order that may become final under Texas Government Code sect 2001144 may only be based upon the evidence presented in the record Texas Government Codesect 2001141(c) Facts not made part of the record may not be included in the findings of fact Protestants exceptions also refer to evidence presented at the hearing which was not in Protestants opinion detailed considered or accorded proper weight in the PFD The ALJ is of the opinion that the PFD is based upon a consideration of all the facts set forth in the record and that it accords due weight to the evidence presented by the parties Accordingly having reviewed Protestants exceptions the ALJ does not recommend any further changes to the summary of testimony or analysis

Protestants Exception to Finding of Fact No 9

The ALJ does not recommend any change to Finding of Fact No 9 The ALJ reviewed the evidence and finds Respondent is operating in compliance with the agreement with the City as a restaurant

2 HOM 2 at 34350 middot3 HOM=2 at 25520

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1529 FAX 7138121001 14100040023

Protestants Exception to Finding of Fact No 12

Although Protestant referred to paragraph 9 Finding of Fact No 12 addressed no-parking sign The evidence shows there are no no-parking signs along Britoak The ALJ does not recommend any changes to Finding of Fact No 12

Petitioners Exception to Findings of Fact No 14 and 15

The ALJ does not recommend any changes to Findings of Fact No 14 and 15 The evidence shows vehicles trash and debris on Britoak Lane could have come from patrons of other nearby businesses

Petitioners Exceptions to Conclusion of Law under TABC Code sectll46(a)(8)

The ALJ does not recommend any changes to any Conclusions of Law The ALJ weighed the evidence and testimony presented by all witnesses to reach the findings of fact and conclusions of law presented

Sincerely

~r~~ Lindy~ndricks Administrative Law Judge

LHsp Enclosure

xc Ramona M Perry Texas Alcoholic Beverage Commission 427 W 201h Street Suite 600 Houston TX 77008 - VIA FACSIMILE 7138627478 Emily Helm General Counsel Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731- VIA FACSIMILE 5122063498 Judith Kennison1 Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 VIA FACSIMILE 5122063498 Sarah Langlois Attorney 5817 Westheimer Suite 1200 Houston TX 77057 - VIA FACSIMILE 7139606025 Richard Kaplan Attorney 11 Greenway Plaza Suite 1400 Houston TX 77046 -VIA FACSIMILE 7139615341 Ryan Patrick 13911 Kingsride Lane Houston TX 77079 - VIA FACSIMILE 2816056681

4 HOM 2at31400-31455 Q -Judge Patrick youre familiar with Britoak Do you know - is it illegal to park on Britoak A No there are no no-parking signs along Britoak Q And in the pictures weve looked at today that had towing signs I believe it was your testimony I

just want to clarify those towing signs are Spring Branch parking lots and other private entity parking lots correct

A Theres tow signs in the entrance of Carrabbas Ethan Allen the dentist office And there are towing signs that are on Spring Branch property

ALJ Let me clarify You said there are no no-parking signs on Britoak A There are no City no-parking there are no traffic signs that say no parking along Britoak There

are a few on the curb ofPatchester which is south of where this map is

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

Ii] 0006002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

05132016 1529 FAX 7138121001 lill00070023

SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Ii] 0005002305132016 1529 FAX 7138121001

SOAH DOCKET NO 458-16-1147 (TABC CASE NO 634816)

TEXAS ALCOHOLIC BEVERAGE COMMISSION

Jurisdictional Petitioner

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT LINDA MCDOWELL RYAN PATRICK DANA EUBANKS AND SUMMER BURKE

Protestants

v

RENEWAL APPLICATION OF MEMORIAL BEVERAGE LLC DBA TWIN PEAKS PER1IT NOS MB854255 FB LB PE HARRIS COUNTY TEXAS

Respondent

sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect sect

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

AMENDED PROPOSAL FOR DECISION

The Proposal for Decision dated March 29 2016 Section 11C5 is amended to show

there are 152 to 157 homes in Nottingham IV

Memorial Beverage LLC (Respondent or Twin Peaks) filed a renewal application with

the Texas Alcoholic Beverage Commission (TABC or Commission) for a Mixed Beverage

Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage

Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway1

Houston Harris County Texas Spring Branch Independent School District Linda McDowell

Ryan Patrick Dana Eubanks and Summer Burke (Protestants) protested the application based on

the general welfare health peace morals and safety of the people and on the public sense of

1 The Katy Freeway is also known as Interstate J0

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decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

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b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

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leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

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b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

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a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

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she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

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Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

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11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE2

decency The Administrative Law Judge (ALJ) recommends that the Commission grant the

renewal application

I JURISDICTION NOTICE AND PROCEDURAL HISTORY

Notice and jurisdiction were not contested and are discussed only in the Findings of Fact

and Conclusions of Law The hearing on the merits convened on February 5 2016 at

2020 North Loop West Suite 111 Houston Texas before ALJ Lindy Hendricks Staff was

represented by attorney Ramona M Perry Respondent was represented by attorneys

Richard Kaplan and Jeremy Roberts Spring Branch Independent School District (SBISD) was

represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and

represented themselves The record closed at the conclusion of the hearing

II DISCUSSION AND ANALYSIS

A Applicable Law

Protestants have the burden ofproof to establish by a preponderance of the evidence that

the permits should not be issued 1 Tex Admin Code sect 155427 Texas Alcoholic Beverage

Code (Code)sect 1 l 46(a)(8) provides that a renewal permit may be denied if the place or manner

in which the applicant may conduct his business warrants the refusal of a permit based on the

general welfare health peace morals and safety of the people and on the public sense of

decency

B Arguments and Evidence of Staff

I ABC staff did not take a position on the application and appeared solely as a

jurisdictional petitioner Staff offered into evidence Respondents administrative history

renewal application and related forms filed with the Commission Staff also offered signed

protest forms received by the Commission in opposition to Respondents application and the

protest investigation conducted by T ABC Agent Chalen Gulley

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

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SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

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SOAH DOCKET NO 45816-1147 PROPOSAL FOR DECISION PAGE3

C Arguments and Evidence of Protestants

Protestants contend that the place or manner in which Respondent operates Twin Peaks is

against the general welfare health peace morals and safety of the community

SBISD Superintendent Dr Scott Muri filed a protest letter opposing the renewal application

Mary Turner Rebecca Clark Thomas Gentry Elizabeth Elliott and Meylinda Boerm also

oppose the renewal application Although the City of Houston did not protest the renewal

application Houston City Council Members Greg Travis and Michael Kubosh submitted protest

letters State Representative Jim Murphy and City Council Member Mike Knox also submitted

letters forwarding SBISDs protest and concerns to the ALJ

1 Jennifer Blaine

Dr Blaine is the Associate Superintendent of Administration and Operation for SBISD

She testified and presented evidence regarding several issues of concern

a Location of SBISD Campuses Relative to Twin Peaks

Wilchester Elementary School is located at 13618 St Marys Lane and has

approximately 780 students Westchester Academy is located at 901 Yorkchester Drive south of

Britoak Lane and consists of two campuses with approximately 1040 students SBISD has a

1000 feet alcohol-free zone policy

Twin Peaks is located between the feeder road of Interstate 10 and Britoak Lane There

are entrances and exits to Twin Peaks from the feeder road as well as Britoak Lane

Westchester Academy is south ofBritoak Lane whereas Wilchester Elementary is further east of

Twin Peaks

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1529 FAX 7138121001 14] 00080023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE4

b Extracurricular Activities

Dr Blaine testified that Westchester Academy is a neighborhood school whose facilities

are used by both students and community organizations Students have sports activities such as

basketball football soccer and lacrosse in the mornings and evenings Tallowood Church uses

the gymnasium and fields for basketball and soccer Bayou City Fellowship gathers every

Sunday and a Japanese language school meets every Saturday The cafeteria and facilities are

used by the homeowners association and the covered playground is open to the community

c Traffic on Britoak Lane

Parents students buses and walkers travel along Britoak Lane Dr Blaine testified that

that SBISD bus routes cross Britoak Lane in the mornings and afternoons According to

Dr Blaine Twin Peaks does not cause traffic problems between 700 and 715 am However

between 300 and 315 pm cars are parked on both sides of the street making it difficult for

SBISD buses to turn and navigate between cars

Dr Blaine testified that there are many commercial businesses in the area and anyone

can park on Britoak Lane Although she did not know whose cars were parked on Britoak Lane

Dr Blaine deduced that they belonged to customers of Twin Peaks She testified that traffic was

not an issue until Twin Peaks opened She has also observed people walk from their parked cars

on Britoak Lane and enter Twin Peaks

d Alcohol Sales

Dr Blaine testified that Interstate 10 is densely packed with businesses including

restaurants and establishments selling alcohol The area south of Britoak Lane is primarily

residential She testified that Twin Peaks sells more alcohol than any nearby licensed businesses

Although there have been no incidents involving students drinking at Twin Peaks Dr Blaine is

concerned for the safety of the students She testified that students may be _harmed by customers

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Ii] 0009002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

leaving Twin Peaks who have consumed alcohol However she is not aware of any accidents

that have occurred on Britoak Lane

e Sexually Explicit

Dr Blaine testified that the manner in which the servers dress the merchandise sold and

the marketing employed by Twin Peaks are sexually explicit She stated she has never been

inside Twin Peaks and her knowledge of Twin Peaks is based on Facebook Dr Blaine testified

that Twin Peaks use of sex appeal to sell a product is contrary to the moral values of SBISD

Nevertheless she has not seen any sexual misconduct or illegal activity in the parking lot

2 Linda Mills McDowell

a Trash and Debris

Ms McDowell filed a protest letter with TABC and testified at the hearing She has two

children who attend Wilchester Elementary She lives in the neighborhood and took photographs

before and after Twin Peaks opened She testified that since Twin Peaks opened she has had to

pick up trash and debris twice a week including broken glass and bottles of Budlight beer and

whiskey She has observed people drinking outside of Twin Peaks but did not see who left the

trash She agreed the trash could be from patrons ofother restaurants

b Alcohol Sales

Ms McDowell reviewed Twin Peaks reported alcohol sales of $28 million in 2015

Although the amount of alcohol sales is less than 50 of Twin Peaks gross receipts

Ms McDowell is concerned about the high amount of alcohol sold across the street from

schools She testified that Twin Peaks is a sports bar and she is concerned that the amount of

alcoholic beverages consumed by its patrons would affect children by putting them at risk of

drunk drivers

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

i4J 0010002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE6

c Calls for Service

Ms McDowell reviewed Houston Police Departments calls for service to Twin Peaks

address and is concerned about the number of calls for service and the safety of the community

d Traffic and Parking

Ms McDowell observed people illegally park and walk into Twin Peaks On two

occasions she called law enforcement regarding the parking issues She attributes the illegal

parking to Twin Peaks stating its parking lot is not large enough to accommodate patrons

Ms McDowell testified that traffic was not an issue before Twin Peaks opened Since

Twin Peaks opened cars are parked along both sides of Britoak Lane

3 Summer Burke

Ms Burke filed a protest letter with T ABC and testified at the hearing She has children

who attend Wilchester Elementary She is familiar with the agreement between Twin Peaks and

the City of Houston This agreement allowed Twin Peaks to operate within SBISDs alcoholshy

free zone so long as Twin Peaks operates as a restaurant with alcoholic beverage sales less than

50 of the total gross receipts Ms Burke testified that Twin Peaks marketed itself on Facebook

as the best sports bar She is concerned that Twin Peaks is not in compliance with the

agreement with the City because it is operating a sports bar Regardless she stated that $28

million in alcohol sales is a large amount of alcohol to be sold in close proximity to the schools

She is concerned that large groups of men and heavy alcohol consumption are not consistent

with the community and safety of the children in nearby schools

a Trash and Debris

Wbile walking in the neighborhood Ms Burke has found debris and trash near

Twin Peaks and the school She testified that Britoak Lane is a heavily travelled street and she

is concerned that the children are exposed to the trash and debris including sexually explicit

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

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SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

14] 0011002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE7

marketing flyers promoting other sexually-oriented businesses Even so Ms Burke

acknowledged that she did not see who left the trash or beer bottles and the trash could have been

left by someone in the neighborhood and not from patrons of Twin Peaks

b Traffic and Parking

Ms Burke observed Twin Peaks employees and customers parking on Britoak Lane She

has called law enforcement who ticketed the vehicles that were illegally parked She does not

know who the cars belonged to and agreed they could have been patrons of any business

c Sexually Explicit

Ms Burke testified that the sexual nature of Twin Peaks marketing and promotions

including car washes and outdoor advertising does not enhance or elevate the community

Ms Burke has never been inside Twin Peaks and does not know if her neighbors dine at

Twin Peaks

4 Crystal Lee Potts

Ms Potts has lived at the comer of Patchester Drive and Britoak Lane since 2011 She

testified that she does not feel safe because of the sale of alcoholic beverages at Twin Peaks its

proximity to the school and community and the lower moral standards of patrons who frequent

Twin Peaks

a Traffic and Parking

Ms Potts testified that there was no overflow of parking on Britoak Lane before the

opening of Twin Peaks Since Twin Peaks opened she has seen an explosion of parallel parking

on Britoak Lane During sporting events cars are parked on Patchester Drive

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

liz] 0012002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGES

b Trash and Debris

Ms Potts has seen more debris and trash since Twin Peaks opened

c Lower Moral Standards of Patrons

Ms Potts testified that on game nights patrons stay longer at Twin Peaks possibly 2 to 3

hours to watch the games and drink alcohol middot She stated that with more time there is more

drinking She has heard people walking behind her house charged up hooting and hollering

This occurred four times in 2 years and lasted 3 to 4 minutes each time She assumed the men middot

came from Twin Peaks

Ms Potts testified that she does not feel comfortable when she takes her children to the

covered playground on Britoak Lane across the street from Twin Peaks She testified that on

one occasion two men walked out of Twin Peaks laughing They nodded their heads

suggestively at her and stared at her and her two children objectifying her She testified that

another time a man sat on Britoak Lane in his car and stared at her for 10 minutes She testified

that on two other occasions she encountered two or three young men who appeared thuggish

looking and made her feel uncomfortable She is opposed to the renewal of the permits

because it is against the general moral standards of the community

S Judge Ryan Patrick2

Judge Patrick is the president of Nottingham IV which consists of 152 to 157 homes

west of Britoak Lane and Patchester Drive He appeared in his personal capacity as an

individual protestant and not in any official capacity as judge or president of the homeowner

association When Judge Patrick looked into Twin Peaks in the fall of 2013 it was too late to

challenge the agreement with the City of Houston who had already permitted Twin Peaks He

stated that Twin Peaks opened in March_2014

2 The Honorable Ryan Patrick is the judge of the 177 District Court in Harris County Texas but was testifying as an individual protestant representing only himself

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

fill 0013002305132016 1530 FAX 7138121001

SOAH DOCKET NO 458-16-l147 PROPOSAL FOR DECISION PAGE9

a Alcohol Sales

Judge Patrick testified that he originally protested the renewal application because he was

concerned that alcohol sales were greater than 50 of the gross receipts He is aware that the

results of an audit showed Twin Peaks alcohol sales being less than 50 of its gross receipts

but he is still concerned about the traffic created by Twin Peaks in the neighborhood

b Traffic and Parking

Judge Patrick has noticed an increase in traffic and parking problems since Twin Peaks

opened He saw Twin Peaks placing cones to block some parking spaces presumably for valet

parking Judge Patrick has observed patrons circling the parking lot looking for a parking space

and people parking on Britoak Lane and Patchester Drive and walk to Twin Peaks He testified

that there are no no-parking signs on Britoak Lane but there are towing signs on SBISD

property Carrabbas Italian Restaurant and Ethan Allen furniture store He has observed people

illegally parked in front of a fire hydrant and in SBISDs parking lot He testified that Precinct 5

deputies patrol the area and issue tickets when possible

D Evidence and Arguments of Respondent

1 Ricky Rosa

Mr Rosa is Respondents owner and chief operating officer responsible for monitoring

the sales and operation of Twin Peaks Twin Peaks opened on March 24 2014 and operates as a

sports-theme mountain-lodge restaurant that serves American-style comfort food The

restaurant has over I 00 high-definition televisions showing all sporting events Its patrons

include men and women primarily between the ages of22 and 49

a Location of SBlSD Campuses Relative to Twin Peaks

According to Mr Rosa Twin Peaks location and its proximity to schools were approved

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

iz]0014002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEIO

by the City of Houston and T ABC during the application process He stated that Twin Peaks

operates primarily as a restaurant with alcohol sales less than 50 of its gross receipts as

verified by audits conducted by T ABC and the State Comptrollers Office

b Alcohol Sales

Mr Rosa testified that Twin Peaks is allowed to operate in an alcohol-free zone because

it operates as a restaurant Twin Peaks is a restaurant because it serves more than 50 food He

stated that it is not uncommon to see parents bring children to the restaurant after games

Mr Rosa testified that Twin Peaks has sold over 5000 meals from their childrens menu

According to Mr Rosa Twin Peaks operates responsibly in its sales of alcohol

beverages All servers are T ABC seller-server certified to ensure alcohol awareness and

responsibility An employee with an expired certification cannot log in for work He also

testified that Twin Peaks offers $1 off beer at happy hour whereas Carrabbas which is next to

Twin Peaks sells half price beer wine and liquor during happy hour

When addressing the risk of drunk drivers Mr Rosa testified that Twin Peaks sells

mostly beer which contains 4 alcohol by volume He testified that Carrabbas sells mostly wine

which has a higher alcohol concentration at 12 to 15 alcohol by volume Mr Rosa stated that a

business can sell less wine and still have intoxicated patrons

c Sexually Explicit

As for concerns about the sexually explicit nature of the servers dress Mr Rosa

characterized it as consistent with Twin Peaks mountain-lodge theme The servers wear flannel

shirts shorts and boots Mr Rosa testified that the risque attire of the Twin Peaks servers is not

unlike the Houston Rockets Power Dancers or that which can be seen in other public places

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

liZ] 0015002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 11

d Traffic and Parking

Mr Rosa testified that any successful business such as a Chick-Fil-A at that location

would cause traffic on Britoak Lane To alleviate traffic Twin Peaks employees are asked to

park on Britoak Lane to reduce the number of cars and activities on that street After 500 pm

Twin Peaks hires a valet service to monitor and help park cars He believes it is unreasonable

that residents expect no traffic when they live in an unzoned unrestricted city along a busy

corridor off Interstate 10

e Calls for Service

Mr Rosa testified that crime is a rarity at Twin Peaks Twin Peaks provides security in

the restaurant including uniformed officers with the Houston Police Department on weekends

game days and special events He explained that some calls for service to Twin Peaks involved

an issue when their panic device triggered an alarm however in Mr Rosas opinion Twin Peaks

did not bring crime to the area

f Community Involvement

In an effort to work with the community Twin Peaks modified its Happy Hours to start at

400 pm instead of 200 pm Mr Rosa explained that they could not add a gate from the

Twin Peaks parking lot that would prohibit drivers from exiting on Britoak Lane because that

would leave a single exit in case of a fire

Mr Rosa testified that Twin Peaks is heavily involved in the surrounding community and

received positive reviews from customers and patrons who live in the neighborhood

Twin Peaks has a Bra-tacular event where decorated bikini tops are auctioned and 100 of the

proceeds are donated for breast screening and mammograms Twin Peaks also has a bikini car

wash event in the summer where all proceeds are donated to a program called Feed the Future

Forward which subsidizes meals for SBISD students who cannot afford lunch Proceeds are also

donated to radio personality Rod Ryan whose program purchases backpacks for students In

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

[ilJ 0016002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 12

addition to these charitable events Twin Peaks other special events include Back to School

Dress Up Bike Night and a Victorias Secret Fashion Show

2 Matthew Trognitz

Mr Trognitz is the director of operations for Twin Peaks and is responsible for training

staff and monitoring the alcohol sales ratio According to Mr Trognitz Twin Peaks alcohol

sales have never exceeded 50 in any month He testified that the numbers are accurate because

Twin Peaks uses a point-of-service data system Servers enter their alcohol sales into the data

system which tracks Twin Peaks total alcohol sales Mr Trognitz testified that Twin Peaks is in

compliance with the TABC which certified their alcohol sales through an audit

According to Mr Trognitz Twin Peaks has received two warnings from TABC He

stated he was not aware of any complaints from citizens regarding traffic until this protest He

testified that Twin Peaks is most busy from 1115 am to 2 pm and from 7 pm to 10 pm and

not between 8 and 9 am or 3 and 5 pm the hours of school traffic

3 Sarah Di Censo

Ms Di Censo is the general manager at Twin Peaks and is responsible for ensuring

compliance with TABC regulations She trains staff regarding responsible alcohol service

including not overserving alcohol or serving alcohol to minors She has not received any

complaints from T ABC or directly from the public She testified that patrons have informed her

that they live in the community Twin Peaks is a restaurant with a sports bar whose patrons

include families and children Children eat free on Saturday and Sunday

Regarding trash and debris Ms Di Censo testified that Twin Peaks has nightly trash

service Ms Di Censo testified that on one occasion someone left an empty beer bottle and cap

at Twin Peaks front door with a note attached She testified that Twin Peaks does not serve beer

with caps left on them They do not sell anything that can be re-sealed or closed She stated that

a person called regarding broken glass from a liquor bottle on Britoak Lane She testified that

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Ii] 0017 002305132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE13

she cleaned up even though the glass was from a cars broken window not a liquor bottle

Ms Di Censo testified that she observed employees of neighboring businesses drink in the

parking lot As for employees of Twin Peaks she stated that Twin Peaks terminates any

employee who is found drinking in the parking lot

Ms Di Censo testified that Twin Peaks provides security in the restaurant and parking

lot She stated that prior to the protest she had not received any complaints regarding parking

on Britoak Lane

E Analysis

Protestants argued that Respondents renewal should be denied because the place or

manner in which Respondent may conduct its business warrants the refusal of the renewal

application based on the general welfare health peace morals and safety of the people and on

the public sense of decency Specifically Protestants argued that Twin Peaks presents a safety

hazard to students and the conununity because of the risks of a high volume of alcohol sales

parking problems traffic and trash Additionally Protestants believe the sexually explicit nature

of the business is contrary to the morals of the community

In order to deny an alcoholic beverage permit to a fully qualified applicant who proposes

to operate a lawful business in a location for which the pell)lit sought is not prohibited by charter

or ordinance of the city some unusual condition or situation must be shown so as to justify a

finding that the place or manner in which the applicant may conduct its business warrants a

refusal of a permit 3 Twin Peaks is not prohibited by the Code or a city charter or ordinance

from operating its business in this location Therefore an unusual condition or situation must be

shown to justify a finding that the place or manner of operation warrants a refusal of its permits

In this case the ALJ does not find that an unusual situation or circumstance exists to deny the

renewal application

3 TABC v Twenty Wings LTD et al 112 SW3d 647 650 (Tex App - Ft Worth 2003) TABC v Mikulenka 510 SW2d 616 619 (Tex Civ App - San Antonio 1974 no writ) and Bavarian Properties Inc v TABC 870 SW2d 686689 (Tex App -Ft Worth 1994 rehg overruled)

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

lg] 00180023051132016 1531 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE14

Regarding the place of Twin Peaks operation Protestants are concerned because it is in

close proximity to SBISD schools and students The evidence shows that Twin Peaks is located

on the feeder road of Interstate 10 situated among other commercial and alcohol-permitted

businesses The campus of Westchester Academy is south of Britoak Lane across the street

from Twin Peaks The evidence shows Twin Peaks location was approved by the City of

Houston and the location is permitted as a restaurant in SBISD s alcohol-free zone The ALJ

finds no unusual situation or circumstance exists to deny the renewal application based on its

place of operation

As for Twin Peaks manner of operation Protestants are concerned about the volume of

alcohol sales near the schools the use of sex appeal in the marketing and theme of the restaurant

and the traffic trash and debris that have increased in the area since Twin Peaks opened its

business

Specifically Protestants are concerned that Twin Peaks is operating a sports bar rather

than a restaurant and point out that Twin Peaks asked Facebook followers to vote it the best

sports bar The City of Houston and TABC requires Twin Peaks to operate as a restaurant with

less than 50 of its gross receipts derived from the sale of alcohol Twin Peaks holds a Food

and Beverage Certificate which also requires the total alcohol sales to be less than 50 of the

gross receipts -The Texas Comptroller would not certify the renewal application if the gross

receipts of mixed beverages sold are not less than 50 of the total gross receipts4 The evidence

shows the T ABC conducted a Food and Beverage Certificate renewal inspection and found that

food service was the primary business being operated on the premises The Comptroller audited

and certified Twin Peaks gross receipts from alcoholic beverages were 469717 at the time of

the renewal application Despite its marketing and annual alcohol sales of over $2 million

Twin Peaks is operating in compliance with T ABC regulations and the agreement with the

City of Houston It is noted that the T ABC Texas Comptroller and City of Houston did not

protest the renewal application

4 Codesect 2818

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

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sect

Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

lg] 0019002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 15

Protestants also argued that Twin Peaks high volume of alcohol sales creates a risk of

patrons driving drunk in their community The ALJ finds that the total alcohol sales would

indicate whether Twin Peaks is operating as a restaurant or bar To that extent the evidence

shows Twin Peaks is in compliance and operating as a restaurant in a manner that does not

violate any agreement ordinance regulation or statute Non-compliance would result in the

denial of the renewal application On the other hand the amount of alcohol served or sold to an

individual is a better indicator of the risks associated with a possibly intoxicated driver

Overserving an individual may result in that person leaving the premises and driving while

intoxicated However there is no evidence that Twin Peaks sale or service of alcohol resulted

in or contributed to any Code violation or criminal offense The administrative history reveals

no substantiated complaints or violations regarding alcohol sales to minors or intoxicated

persons Although Protestants are concerned about the volume of alcohol sold the amount of

alcohol sales does not present an unusual situation or circumstance that warrants the denial of the

renewal application

Protestants are concerned that Twin Peaks poses a safety hazard due to traffic and

parking issues on Britoak Lane They argued that traffic was not an issue on Britoak Lane until

Twin Peaks opened Twin Peaks acknowledged that its employees are asked to park on

Britoak Lane to keep its patrons in the parking lot and to reduce street activity behind the

restaurant The evidence shows that Britoak Lane is a public street without no-parking signs

There are commercial offices businesses restaurants and a hotel near Twin Peaks Protestants

testified that illegally parked vehicles are towed or issued citations Although some patrons and

employees of Twin Peaks park on Britoak Lane the evidence is insufficient to show Twin Peaks

is wholly responsible for the traffic and congestion on Britoak Lane Protestants testified that the

vehicles could belong to other nearby offices and businesses Neverthelesswithout permit-only

restricted parking anyone could have and can park on Britoak Lane including patrons and

employees of Twin Peaks In this case the evidence is insufficient to deny a renewal application

for parking or traffic congestion on a public roadway that is shared by businesses cars buses

and pedestrians

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

14J 0020002305132016 1532 FAX 7138121001

SOAR DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 16

Protestants testified that they have picked up trash and debris along Britoak Lane which

theymiddot have attributed to Twin Peaks The evidence is insufficient to show Twin Peaks or its

patrons were responsible for the trash There was no evidence of a T ABC violation where

Twin Peaks allowed patrons to leave the premises with alcohol The beer bottles trash and

debris could have been left by anyone

Protestants objected to the renewal application and argued that Twin Peaks sexual

manner of operation is contrary to the morals of the community Protestants offered Facebook

images showing costumed servers and certain promotional events at Twin Peaks Protestants

described the costumes as something they would not wear In addition Protestants did not like

the sexual marketing and theme of the business Although Protestants find the marketing

employed by Twin Peaks to be sexually explicit Twin Peaks was not permitted as a sexually

oriented business and is considered a restaurant by the City Twin Peaks was issued an original

permit on March 24 2014 without an administrative protest Twin Peaks has operated for two

years with the same theme During the 2-year renewal period Twin Peaks received two written

warnings and no administrative violations or offenses

The evidence shows that none of the Protestants have actually been inside Twin Peaks

Their protest of the sexually explicit nature of Twin Peaks is based on what they have seen on

Facebook and their observation of a costumed server walking to work from the parking lot to the

restaurant With the exception of an annual car wash the evidence shows Twin Peaks

promotional events are promoted on Facebook and take place inside the restaurant out of the

publics view The ALJ finds that Twin Peaks manner of operation has limited impact or

exposure to Protestants who did not go to the restaurant or who could have avoided its Facebook

page There is no evidence that SBISD children were exposed to morally offensive behavior or

harmed by Twin Peaks manner of operation

For these reasons the ALJ finds that the preponderance of the evidence does not show

that the place or manner in which Respondent may conduct its business warrants the refusal of

the permits based on the general welfare health peace morals and safety of the people and on

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Ii] 0021002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGEl7

the public sense of decency Therefore the ALJ does not recommend the denial of

Respondents renewal application

III- FINDINGS OF FACT

1 Memorial Beverage LLC (Respondent or Twin Peaks) has filed a renewal application with the Texas Alcoholic Beverage Commission (TABC) for a Mixed Beverage Permit Food and Beverage Certificate Mixed Beverage Late Hours Permit and Beverage Cartage Permit for the premises known as Twin Peaks located at 11335 Katy Freeway Houston Harris County Texas

2 Protests to the application were filed by Spring Branch Independent School District (SBISD) Linda McDowell Ryan Patrick Dana Eubanks and Summer Burke ( collectively Protestants)

3 On November 13 2015 TABC Staff issued a notice of hearing informing the parties of the time date and location of the hearing on the application the applicable rules and statutes involved and a short plain statement of the matters asserted

4 On February 5 2016 a public hearing was convened in Houston Texas Administrative Law Judge (ALJ) Lindy Hendricks presided Respondent was represented by attorneys Richard Kaplan and Jeremy Roberts TABCs Staff was represented by staff attorney Ramona M Perry SBISD was represented by attorneys Sarah Langlois and Dylan Farmer Individual protestants appeared and represented themselves

5 Twin Peaks is located at 11335 Katy Freeway also known as Interstate 10 within SBISDs 1000 feet alcohol-free zone

6 Twin Peaks location was certified by the City of Houston and permitted as a restaurant with the condition that Twin Peaks gross receipts from the sale of alcoholic beverages must be less than 50 of its gross receipts

7 T ABC conducted a Food and Beverage Certificate renewal inspection and found that food service was the primary business being operated ori the premises

8 The Texas Comptroller of Public Accounts audited and certified that Twin Peaks gross receipts from alcoholic beverages were 469717

9 Twin Peaks is operating in compliance with the agreement with the City of Houston as a restaurant

10 Twin Peaks administrative history reveals no complaints or violations regarding the sale or service of alcohol to minors or intoxicated persons

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

sect

sect

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sect

sect

sect

sect

sect

sect

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sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

sect

Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Ii] 0022002305132016 1532 FAX 7138121001

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE 18

11 Britoak Lane separates Twin Peaks parking lot from SBISDs campuses

12 Britoak Lane is a public roadway without no-parking signs

13 Customers and employees at Twin Peaks and nearby businesses may legally park on Britoak Lane

14 Twin Peaks is not wholly responsible for the traffic and congestion on Britoak Lane

15 The trash and debris on Britoak Lane may have come from sources other than Twin Peaks

16 When Twin Peaks filed its original application for a permit no administrative protest was filed

17 Twin Peaks was issued its original permits on March 24 2014

18 Twin Peaks has been operating for two years with the same marketing theme

19 During the 2-year period of operation Twin Peaks received two written warnings but no administrative violations or offenses

20 None of the Protestants have been inside Twin Peaks

21 With the exception of an annual car wash Twin Peaks promotional events are promoted on Facebook and take place inside the restaurant out of the publics view

22 Twin Peaks manner of operation has limited impact or exposure to Protestants who do not go inside the restaurant or who could have avoided its Facebook page

23 SBISD children were not exposed to morally offensive behavior or harmed by Twin Peaks manner ofoperation

IV CONCLUSIONS OF LAW

1 TABC has jurisdiction over this case pursuant to Texas Alcoholic Beverage Code chapters 1 5 andsectsect 601 and 1146

2 The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding including the preparation of a proposal for decision with findings of fact and conclusions of law pursuant to Texas Government Code chapter 2003

3 Notice of the hearing was provided as required by the Administrative Procedure Act Texas Government Codesectsect 2001051-052

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

05132016 1533 FAX 7138121001 lg] 00230023

SOAH DOCKET NO 458-16-1147 PROPOSAL FOR DECISION PAGE19

4 Based on the findings of fact the place or manner in which Respondent may conduct its business does not warrant the refusal of the permit based on the general welfare health peace morals and safety of the people and on the public sense of decency pursuant to Texas Alcoholic Beverage Code sect 1146(a)(8)

5 Respondents renewal application of mixed beverage permit MB854255 FB LB and PE should be granted Texas Alcoholic Beverage Code sect 1146(a)(8)

SIGNED May 13 2016

LfDYDRICKS ADMINlSTRATI-pound LAW JUDGE STATpound omet OF AIgt~JSTRATIYE HEARINGS

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

DOCKET NO 634816

TEXAS ALCOHOLIC BEVERAGE

COMMISSION Petitioner

SPRING BRANCH INDEPENDENT

SCHOOL DISTRICT LINDA MCDOWELL

RYAN PATRICK DANA EUBANKS AND

SUMMER BURKE Protestants

VS

RENEWAL APPLICATION OF MEMORIAL

BEVERAGE LLC

DBA TWIN PEAKS

Respondent

PERMIT MB854255 FB LB PE

HARRIS COUNTY TEXAS

(SOAH DOCKET NO 458-16-1147) BEVERAGE COMMISSION

BEFORE THE TEXAS

ALCOHOLIC

sect

sect

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sect

sect

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Page 1 of 4

ORDER

CAME ON FOR CONSIDERATION this 27th day of October 2016 the above-styled

and numbered cause

After proper notice was given this case was heard by the State Office of Administrative

Hearings (SOAH) with Administrative Law Judge Lindy Hendricks presiding The hearing

convened on February 5 2016 and the SOAH record closed the same date The Administrative

Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions

of Law on March 29 2016 The Proposal for Decision was properly served on all parties who

were given an opportunity to file exceptions and replies as part of the record herein On April

15 2016 Protestant Ryan Patrick filed exceptions and on April 29 2016 Respondent filed a

reply

On May 13 2016 the Administrative Law Judge issued a letter in response to the

exceptions pursuant to 1 Texas Administrative Code sect155507(d) In the letter the

Administrative Law Judge indicated that one change should be made to the text of the Proposal

for Decision and therefore issued an Amended Proposal for Decision on that date to reflect that

change The Administrative Law Judge indicated in the letter recommended no other changes to

the Proposal for Decision No changes were made by the Administrative Law Judge in the

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

__________________________________________

Amended Proposal for Decision to any Findings of Fact or Conclusions of Law in the original

Proposal for Decision

After review and due consideration of the Proposal for Decision I adopt the Findings of

Fact and Conclusions of Law of the Administrative Law Judge that are contained in the

Amended Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law

into this Order as if such were fully set out and separately stated herein

All motions requests for entry of Proposed Findings of Fact and Conclusions of Law

and any other requests for general or specific relief submitted by any party are denied unless

specifically adopted herein

IT IS THEREFORE ORDERED Respondentrsquos renewal application for the above

permits and certificate be GRANTED

This Order will become final and enforceable on the 22nd day of November

2016 unless a Motion for Rehearing is filed by the 21st day of November 2016

SIGNED this the 27th day of October 2016 at Austin Texas

Sherry K-Cook Executive Director

Texas Alcoholic Beverage Commission

CERTIFICATE OF SERVICE

I certify that the persons listed below were served with a copy of this Order in the manner

indicated below on this the 27th day of October 2016

Page 2 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Page 3 of 4

__________________________________________

Martin Wilson Assistant General Counsel

Texas Alcoholic Beverage Commission

Lindy Hendricks

ADMINISTRATIVE LAW JUDGE

State Office of Administrative Hearings

2020 North Loop West Suite 111

Houston TX 77018

VIA FACSIMILE (512) 322-2061

Memorial Beverage LLC

dba Twin Peaks

RESPONDENT

110 Venice Street

Sugar Land TX 77478

VIA FIRST CLASS MAIL CMRRR 70160340000080982918

Richard Kaplan

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982901

Jeremy Roberts

ATTORNEY FOR RESPONDENT

11 Greenway Plaza Suite 1400

Houston TX 77046

VIA FIRST CLASS MAIL CMRRR 70160340000080982895

Sarah Longlois

ATTORNEY FOR PROTESTANT

5817 Westheimer Suite 1200

Houston TX 77057

VIA FIRST CLASS MAIL CMRRR 70160340000080982888

Linda McDowell

PROTESTANT

13835 Saint Maryrsquos Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982871

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4

Judge Ryan Patrick

PROTESTANT

13911 Kingsride Lane

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982864

Summer Burke

PROTESTANT

13815 Myrtlea

Houston TX 77079

VIA FIRST CLASS MAIL CMRRR 70160340000080982857

State Representative Jim Murphy

PROTESTANT

PO Box 2910

Austin TX 78768

VIA FIRST CLASS MAIL CMRRR 70160340000080982840

Ramona Perry

ATTORNEY FOR PETITIONER

TABC Legal Division

VIA E-MAILRamonaperrytabctexasgov

Page 4 of 4