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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
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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
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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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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
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
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
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 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
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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
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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 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
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
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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
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
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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
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
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 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
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
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
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 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
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
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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
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
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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
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
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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
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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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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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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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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
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
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)
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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
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
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
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
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
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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
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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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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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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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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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 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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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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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
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
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 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
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
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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
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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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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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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
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
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] 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
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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
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 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 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
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
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
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
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
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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
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] 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
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sect
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sect
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sect
sect
sect
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
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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
sect
sect
sect
sect
sect
sect
sect
sect
sect
sect
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] 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
sect
sect
sect
sect
sect
sect
sect
sect
sect
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
sect
sect
sect
sect
sect
sect
sect
sect
sect
sect
sect
sect
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
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
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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
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