State Office of Administrative Hearings
Lesli G Ginn Chief Administrative Law Judge
August 4 2017
Ed Swedberg VIA REGULAR MAIL Acting Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin Texas 78731
RE SOAH Docket No 458-17-2960 Texas Alcoholic Beverage Commission vs MIS Enterprises Inc dba Moulin Rouge
Dear Mr Swedberg
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 ADMfN CODEsect 155507(c) a SOAH rule which may be found at wwwsoahstatetx us
Sincerely
~~~1pound ltltamp~ lt WHTTEY L~T0ElilpoundR A DMINISTRATIVE LAV JUOCE STATE OFFICE OF ADMINISTRATIVE HEARINlS
WLSsjp Enclosure xc Sheila Lindsey-Sanders Staff Attorney Texas Alcoholic Beverage Commission 427 W 20
1 h Street Suite
600 Houston TX 77008 ~ VIA REGULAR MAIL Judith Kennison Senior Attorney Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin TX 78731 - VIA REGULAR MAIL Dina Powell General Counsels Office 5806 Mesa Drive Suite 380 Austin TX 78731 - - Vtlt REGULAR MAIL C lyde Burleson Attorney 1533 W Alabana Suite JOO Houston TX 77006 -VIA REGULAR MAIL
2020 North Loop West Suite 111 Houston Texas 77018 713-957-0010 (Main) 713-812-1001 (Fax)
wwwsoahstatetxus
SOAH DOCKET NO 458-17-2960 (TABC CASE NO 64114)4
TEXAS ALCOHOLIC BEVERAGE COMMISSION
Petitioner
v
MIS ENTERPRISES INC DBA MOULIN ROUGE PERMITLICENSE NO(s) MB471800LB HARRIS COUNTY TEXAS
Respondent
sect BEFORE THE STATE OFFICE
OF
ADMINISTRATIVE HEARINGS
sect sect sect sect sect sect sect sect sect sect sect
PROPOSAL FOR DECISION
Staff of the Texas Alcoholic Beverage Commission (TABC) brought this enforcement
action against MlS Enterprises Inc dba Moulin Rouge (Respondent) alleging that
Respondent its agent servant or employee sold an alcoholic beverage to an intoxicated person
The Administrative Law Judge (ALJ) finds that Respondents agent servant or employee
violated a section of the Code by selling serving or delivering an alcoholic beverage to an
intoxicated person The ALJ recommends that Respondents permit be suspended for a period of
18 days without the opportunity to pay a civil penalty
I JURISDICTION NOTICE AND PROCEDURAL HISTORY
The hearing in this matter convened on June 2 2017 before State Office of
Administrative Hearings (SOAH) ALJ Whitney L Stoebner Shelia Lindsey-Sanders Staff
Attorney represented Staff at the hearing Clyde Burleson attorney represented Respondent
After the presentation of evidence and testimony the record remained open until June 16 2017
to allow the parties to submit written closing arguments 1
1 The ALJ also set a deadline of June 7 2017 in order for the Respondent to provide a copy of video evidence offered at the hearing
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE2
The parties stipulated as to notice and jurisdiction Therefore notice and jurisdiction are
addressed only in the findings of fact and conclusions of law
II ALLEGATION AND LEGAL STANDARDS
On May 8 2000 T ABC issued a Mixed Beverage Permit and a Mixed Beverage Late
Hours Pem1it for Respondents premises located at 8930 Winkler Drive Houston Harris
County Texas 77017
The Texas Alcoholic Beverage Code (Code) provides that a permit may be cancelled or
suspended for a period of time not exceeding 60 days if it is found after notice and a hearing
that the pennittee violated a provision of the Code or a rule of the Commission
Staff alleges that on August 6 2016 Respondents agent servant or employee violated a
section of the Code by selling serving or delivering an alcoholic beverage to an intoxicated
person
III DISCUSSION
A Evidence
1 Staffs Evidence
a Agent Jeremiah Sauceda
Agent Sauceda participated in an investigation of Respondents establishment
(the establishment) on August 6 2016 Agent Sauceda and Agent Lopez entered the
establishment in an undercover capacity at approximately 916 pm4 The stage was located to
the left of the entrance the establishments only bar was straight ahead and only one bartender
2 Codesectsect JI61(b)(2) and (14) 3 Codesectsect JI61(b)(2) and (14) 4 Agent Lopezs first name was not provided during the hearing
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE3
was working at the time 5
Staffs Ex 3
The lighting was adequate and the establishment was not dark There
were about 20 patrons in the establishment and approximately six to seven of those patrons were
located at the bar
Agents Sauceda and Lopez proceeded to the seating area and purchased beers from a
waitress While seated at the table they were about ten feet away from the bar and had a clear
unobstructed view Agent Sauceda observed an individual later identified as Javier Sanchez at
the bar Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open
tilting his head back closing his eyes for a few seconds and swaying from side to side while
standing On more than one occasion he attempted to drink from a bottle of beer and missed his
mouth The baiiender was behind the bar approximately two to three feet away from
Mr Sanchez Mr Sanchez was drinking a Michelob Ultra beer He leaned into the bartender
and appeared to order another beer which the bartender provided At one point Mr Sanchez
left the bar and walked to the stage to give money to an entertainer Mr Sanchez swayed from
side to side Agent Sauceda observed Mr Sanchez for almost an hour At approximately
10 10 pm Agent Sauceda notified the open team and provided a description of Mr Sanchez
the alcohol he was consuming and the bartender The open team entered the establishment at
approximately 1015 pm
On cross examination Agent Sauceda admitted he had never met Mr Sanchez before and
was unfamiliar with how he normally speaks or walks He fmiher stated he had never observed
Mr Sanchezs eyes prior to that evening Agent Sauceda agreed that Michelob Ultra is a light
beer He only observed Mr Sanchez consume beer and did not see him take shots of alcohol or
drink mixed drinks During the hour Agent Sauceda observed Mr Sanchez he consumed only
one alcoholic beverage Agent Sauceda further stated that Mr Sanchez did not trip when
walking to the stage nor did he use tables or chairs for balance Agent Sauceda admitted he did
not indicate that Mr Sanchez swayed when walking to the stage in his investigatory report
Agent Sauceda did not recall Mr Sanchez being belligerent falling out of his seat tripping
stating he was going to drive or starting a fight
5
PAGE4SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
b Agent Henry Landin
On August 6 2016 Agent Landin paiiicipated in an investigation of the establishment as
a member of the open team According to Agent Landin the open team was not on-site during
the investigation but was in close proximity to the establishment awaiting notification of
violations observed by the undercover agents At 1010 pm the undercover agents notified the
open team via text message of a sale to an intoxicated person The open team anived on the
premises about 1015 pm Agent Landin entered the establishment and observed an individual
matching the description provided by the undercover agents At the time Agent Landin entered
the establishment there were only about seven to eight people in the bar area Agent Landin
made contact with the individual identified as Mr Sanchez by his Texas drivers license and
asked him to come outside
6 Staffs Ex 5
When Agent Landin first approached Mr Sanchez he seemed confused Agent Landin
fmiher observed Mr Sanchez had slurred speech and an odor of alcohol on his person
Mr Sanchez stated he had a few drinks but did not provide an exact number He stated that he
had a friend inside the establishment who could take him home but he could not recall his
friends name He then said his sister could come to the establishment to take him home
Agent Landin has encountered intoxicated people previously through his work in law
enforcement He stated that the odor of alcohol slmTed speech and swaying are all signs of
intoxication He further stated that missing ones mouth when drinking a beer would also be a
sign of intoxication and a bartender should pay attention to these signs He stated that
bartenders have a duty to pay attention to their customers and take note of unusual behaviors
Though such signs might not necessarily mean someone is intoxicated a baiiender should make
contact with patrons to ascertain the cause of such behaviors He further stated that not all
intoxicated individuals are belligerent or argumentative
On cross-examination Agent Landin stated that Mr Sanchez did not have red glassy
eyes and he was not belligerent Mr Sanchez was cooperative He did not break bottles start a
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 (TABC CASE NO 64114)4
TEXAS ALCOHOLIC BEVERAGE COMMISSION
Petitioner
v
MIS ENTERPRISES INC DBA MOULIN ROUGE PERMITLICENSE NO(s) MB471800LB HARRIS COUNTY TEXAS
Respondent
sect BEFORE THE STATE OFFICE
OF
ADMINISTRATIVE HEARINGS
sect sect sect sect sect sect sect sect sect sect sect
PROPOSAL FOR DECISION
Staff of the Texas Alcoholic Beverage Commission (TABC) brought this enforcement
action against MlS Enterprises Inc dba Moulin Rouge (Respondent) alleging that
Respondent its agent servant or employee sold an alcoholic beverage to an intoxicated person
The Administrative Law Judge (ALJ) finds that Respondents agent servant or employee
violated a section of the Code by selling serving or delivering an alcoholic beverage to an
intoxicated person The ALJ recommends that Respondents permit be suspended for a period of
18 days without the opportunity to pay a civil penalty
I JURISDICTION NOTICE AND PROCEDURAL HISTORY
The hearing in this matter convened on June 2 2017 before State Office of
Administrative Hearings (SOAH) ALJ Whitney L Stoebner Shelia Lindsey-Sanders Staff
Attorney represented Staff at the hearing Clyde Burleson attorney represented Respondent
After the presentation of evidence and testimony the record remained open until June 16 2017
to allow the parties to submit written closing arguments 1
1 The ALJ also set a deadline of June 7 2017 in order for the Respondent to provide a copy of video evidence offered at the hearing
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE2
The parties stipulated as to notice and jurisdiction Therefore notice and jurisdiction are
addressed only in the findings of fact and conclusions of law
II ALLEGATION AND LEGAL STANDARDS
On May 8 2000 T ABC issued a Mixed Beverage Permit and a Mixed Beverage Late
Hours Pem1it for Respondents premises located at 8930 Winkler Drive Houston Harris
County Texas 77017
The Texas Alcoholic Beverage Code (Code) provides that a permit may be cancelled or
suspended for a period of time not exceeding 60 days if it is found after notice and a hearing
that the pennittee violated a provision of the Code or a rule of the Commission
Staff alleges that on August 6 2016 Respondents agent servant or employee violated a
section of the Code by selling serving or delivering an alcoholic beverage to an intoxicated
person
III DISCUSSION
A Evidence
1 Staffs Evidence
a Agent Jeremiah Sauceda
Agent Sauceda participated in an investigation of Respondents establishment
(the establishment) on August 6 2016 Agent Sauceda and Agent Lopez entered the
establishment in an undercover capacity at approximately 916 pm4 The stage was located to
the left of the entrance the establishments only bar was straight ahead and only one bartender
2 Codesectsect JI61(b)(2) and (14) 3 Codesectsect JI61(b)(2) and (14) 4 Agent Lopezs first name was not provided during the hearing
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE3
was working at the time 5
Staffs Ex 3
The lighting was adequate and the establishment was not dark There
were about 20 patrons in the establishment and approximately six to seven of those patrons were
located at the bar
Agents Sauceda and Lopez proceeded to the seating area and purchased beers from a
waitress While seated at the table they were about ten feet away from the bar and had a clear
unobstructed view Agent Sauceda observed an individual later identified as Javier Sanchez at
the bar Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open
tilting his head back closing his eyes for a few seconds and swaying from side to side while
standing On more than one occasion he attempted to drink from a bottle of beer and missed his
mouth The baiiender was behind the bar approximately two to three feet away from
Mr Sanchez Mr Sanchez was drinking a Michelob Ultra beer He leaned into the bartender
and appeared to order another beer which the bartender provided At one point Mr Sanchez
left the bar and walked to the stage to give money to an entertainer Mr Sanchez swayed from
side to side Agent Sauceda observed Mr Sanchez for almost an hour At approximately
10 10 pm Agent Sauceda notified the open team and provided a description of Mr Sanchez
the alcohol he was consuming and the bartender The open team entered the establishment at
approximately 1015 pm
On cross examination Agent Sauceda admitted he had never met Mr Sanchez before and
was unfamiliar with how he normally speaks or walks He fmiher stated he had never observed
Mr Sanchezs eyes prior to that evening Agent Sauceda agreed that Michelob Ultra is a light
beer He only observed Mr Sanchez consume beer and did not see him take shots of alcohol or
drink mixed drinks During the hour Agent Sauceda observed Mr Sanchez he consumed only
one alcoholic beverage Agent Sauceda further stated that Mr Sanchez did not trip when
walking to the stage nor did he use tables or chairs for balance Agent Sauceda admitted he did
not indicate that Mr Sanchez swayed when walking to the stage in his investigatory report
Agent Sauceda did not recall Mr Sanchez being belligerent falling out of his seat tripping
stating he was going to drive or starting a fight
5
PAGE4SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
b Agent Henry Landin
On August 6 2016 Agent Landin paiiicipated in an investigation of the establishment as
a member of the open team According to Agent Landin the open team was not on-site during
the investigation but was in close proximity to the establishment awaiting notification of
violations observed by the undercover agents At 1010 pm the undercover agents notified the
open team via text message of a sale to an intoxicated person The open team anived on the
premises about 1015 pm Agent Landin entered the establishment and observed an individual
matching the description provided by the undercover agents At the time Agent Landin entered
the establishment there were only about seven to eight people in the bar area Agent Landin
made contact with the individual identified as Mr Sanchez by his Texas drivers license and
asked him to come outside
6 Staffs Ex 5
When Agent Landin first approached Mr Sanchez he seemed confused Agent Landin
fmiher observed Mr Sanchez had slurred speech and an odor of alcohol on his person
Mr Sanchez stated he had a few drinks but did not provide an exact number He stated that he
had a friend inside the establishment who could take him home but he could not recall his
friends name He then said his sister could come to the establishment to take him home
Agent Landin has encountered intoxicated people previously through his work in law
enforcement He stated that the odor of alcohol slmTed speech and swaying are all signs of
intoxication He further stated that missing ones mouth when drinking a beer would also be a
sign of intoxication and a bartender should pay attention to these signs He stated that
bartenders have a duty to pay attention to their customers and take note of unusual behaviors
Though such signs might not necessarily mean someone is intoxicated a baiiender should make
contact with patrons to ascertain the cause of such behaviors He further stated that not all
intoxicated individuals are belligerent or argumentative
On cross-examination Agent Landin stated that Mr Sanchez did not have red glassy
eyes and he was not belligerent Mr Sanchez was cooperative He did not break bottles start a
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE2
The parties stipulated as to notice and jurisdiction Therefore notice and jurisdiction are
addressed only in the findings of fact and conclusions of law
II ALLEGATION AND LEGAL STANDARDS
On May 8 2000 T ABC issued a Mixed Beverage Permit and a Mixed Beverage Late
Hours Pem1it for Respondents premises located at 8930 Winkler Drive Houston Harris
County Texas 77017
The Texas Alcoholic Beverage Code (Code) provides that a permit may be cancelled or
suspended for a period of time not exceeding 60 days if it is found after notice and a hearing
that the pennittee violated a provision of the Code or a rule of the Commission
Staff alleges that on August 6 2016 Respondents agent servant or employee violated a
section of the Code by selling serving or delivering an alcoholic beverage to an intoxicated
person
III DISCUSSION
A Evidence
1 Staffs Evidence
a Agent Jeremiah Sauceda
Agent Sauceda participated in an investigation of Respondents establishment
(the establishment) on August 6 2016 Agent Sauceda and Agent Lopez entered the
establishment in an undercover capacity at approximately 916 pm4 The stage was located to
the left of the entrance the establishments only bar was straight ahead and only one bartender
2 Codesectsect JI61(b)(2) and (14) 3 Codesectsect JI61(b)(2) and (14) 4 Agent Lopezs first name was not provided during the hearing
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE3
was working at the time 5
Staffs Ex 3
The lighting was adequate and the establishment was not dark There
were about 20 patrons in the establishment and approximately six to seven of those patrons were
located at the bar
Agents Sauceda and Lopez proceeded to the seating area and purchased beers from a
waitress While seated at the table they were about ten feet away from the bar and had a clear
unobstructed view Agent Sauceda observed an individual later identified as Javier Sanchez at
the bar Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open
tilting his head back closing his eyes for a few seconds and swaying from side to side while
standing On more than one occasion he attempted to drink from a bottle of beer and missed his
mouth The baiiender was behind the bar approximately two to three feet away from
Mr Sanchez Mr Sanchez was drinking a Michelob Ultra beer He leaned into the bartender
and appeared to order another beer which the bartender provided At one point Mr Sanchez
left the bar and walked to the stage to give money to an entertainer Mr Sanchez swayed from
side to side Agent Sauceda observed Mr Sanchez for almost an hour At approximately
10 10 pm Agent Sauceda notified the open team and provided a description of Mr Sanchez
the alcohol he was consuming and the bartender The open team entered the establishment at
approximately 1015 pm
On cross examination Agent Sauceda admitted he had never met Mr Sanchez before and
was unfamiliar with how he normally speaks or walks He fmiher stated he had never observed
Mr Sanchezs eyes prior to that evening Agent Sauceda agreed that Michelob Ultra is a light
beer He only observed Mr Sanchez consume beer and did not see him take shots of alcohol or
drink mixed drinks During the hour Agent Sauceda observed Mr Sanchez he consumed only
one alcoholic beverage Agent Sauceda further stated that Mr Sanchez did not trip when
walking to the stage nor did he use tables or chairs for balance Agent Sauceda admitted he did
not indicate that Mr Sanchez swayed when walking to the stage in his investigatory report
Agent Sauceda did not recall Mr Sanchez being belligerent falling out of his seat tripping
stating he was going to drive or starting a fight
5
PAGE4SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
b Agent Henry Landin
On August 6 2016 Agent Landin paiiicipated in an investigation of the establishment as
a member of the open team According to Agent Landin the open team was not on-site during
the investigation but was in close proximity to the establishment awaiting notification of
violations observed by the undercover agents At 1010 pm the undercover agents notified the
open team via text message of a sale to an intoxicated person The open team anived on the
premises about 1015 pm Agent Landin entered the establishment and observed an individual
matching the description provided by the undercover agents At the time Agent Landin entered
the establishment there were only about seven to eight people in the bar area Agent Landin
made contact with the individual identified as Mr Sanchez by his Texas drivers license and
asked him to come outside
6 Staffs Ex 5
When Agent Landin first approached Mr Sanchez he seemed confused Agent Landin
fmiher observed Mr Sanchez had slurred speech and an odor of alcohol on his person
Mr Sanchez stated he had a few drinks but did not provide an exact number He stated that he
had a friend inside the establishment who could take him home but he could not recall his
friends name He then said his sister could come to the establishment to take him home
Agent Landin has encountered intoxicated people previously through his work in law
enforcement He stated that the odor of alcohol slmTed speech and swaying are all signs of
intoxication He further stated that missing ones mouth when drinking a beer would also be a
sign of intoxication and a bartender should pay attention to these signs He stated that
bartenders have a duty to pay attention to their customers and take note of unusual behaviors
Though such signs might not necessarily mean someone is intoxicated a baiiender should make
contact with patrons to ascertain the cause of such behaviors He further stated that not all
intoxicated individuals are belligerent or argumentative
On cross-examination Agent Landin stated that Mr Sanchez did not have red glassy
eyes and he was not belligerent Mr Sanchez was cooperative He did not break bottles start a
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE3
was working at the time 5
Staffs Ex 3
The lighting was adequate and the establishment was not dark There
were about 20 patrons in the establishment and approximately six to seven of those patrons were
located at the bar
Agents Sauceda and Lopez proceeded to the seating area and purchased beers from a
waitress While seated at the table they were about ten feet away from the bar and had a clear
unobstructed view Agent Sauceda observed an individual later identified as Javier Sanchez at
the bar Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open
tilting his head back closing his eyes for a few seconds and swaying from side to side while
standing On more than one occasion he attempted to drink from a bottle of beer and missed his
mouth The baiiender was behind the bar approximately two to three feet away from
Mr Sanchez Mr Sanchez was drinking a Michelob Ultra beer He leaned into the bartender
and appeared to order another beer which the bartender provided At one point Mr Sanchez
left the bar and walked to the stage to give money to an entertainer Mr Sanchez swayed from
side to side Agent Sauceda observed Mr Sanchez for almost an hour At approximately
10 10 pm Agent Sauceda notified the open team and provided a description of Mr Sanchez
the alcohol he was consuming and the bartender The open team entered the establishment at
approximately 1015 pm
On cross examination Agent Sauceda admitted he had never met Mr Sanchez before and
was unfamiliar with how he normally speaks or walks He fmiher stated he had never observed
Mr Sanchezs eyes prior to that evening Agent Sauceda agreed that Michelob Ultra is a light
beer He only observed Mr Sanchez consume beer and did not see him take shots of alcohol or
drink mixed drinks During the hour Agent Sauceda observed Mr Sanchez he consumed only
one alcoholic beverage Agent Sauceda further stated that Mr Sanchez did not trip when
walking to the stage nor did he use tables or chairs for balance Agent Sauceda admitted he did
not indicate that Mr Sanchez swayed when walking to the stage in his investigatory report
Agent Sauceda did not recall Mr Sanchez being belligerent falling out of his seat tripping
stating he was going to drive or starting a fight
5
PAGE4SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
b Agent Henry Landin
On August 6 2016 Agent Landin paiiicipated in an investigation of the establishment as
a member of the open team According to Agent Landin the open team was not on-site during
the investigation but was in close proximity to the establishment awaiting notification of
violations observed by the undercover agents At 1010 pm the undercover agents notified the
open team via text message of a sale to an intoxicated person The open team anived on the
premises about 1015 pm Agent Landin entered the establishment and observed an individual
matching the description provided by the undercover agents At the time Agent Landin entered
the establishment there were only about seven to eight people in the bar area Agent Landin
made contact with the individual identified as Mr Sanchez by his Texas drivers license and
asked him to come outside
6 Staffs Ex 5
When Agent Landin first approached Mr Sanchez he seemed confused Agent Landin
fmiher observed Mr Sanchez had slurred speech and an odor of alcohol on his person
Mr Sanchez stated he had a few drinks but did not provide an exact number He stated that he
had a friend inside the establishment who could take him home but he could not recall his
friends name He then said his sister could come to the establishment to take him home
Agent Landin has encountered intoxicated people previously through his work in law
enforcement He stated that the odor of alcohol slmTed speech and swaying are all signs of
intoxication He further stated that missing ones mouth when drinking a beer would also be a
sign of intoxication and a bartender should pay attention to these signs He stated that
bartenders have a duty to pay attention to their customers and take note of unusual behaviors
Though such signs might not necessarily mean someone is intoxicated a baiiender should make
contact with patrons to ascertain the cause of such behaviors He further stated that not all
intoxicated individuals are belligerent or argumentative
On cross-examination Agent Landin stated that Mr Sanchez did not have red glassy
eyes and he was not belligerent Mr Sanchez was cooperative He did not break bottles start a
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
PAGE4SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
b Agent Henry Landin
On August 6 2016 Agent Landin paiiicipated in an investigation of the establishment as
a member of the open team According to Agent Landin the open team was not on-site during
the investigation but was in close proximity to the establishment awaiting notification of
violations observed by the undercover agents At 1010 pm the undercover agents notified the
open team via text message of a sale to an intoxicated person The open team anived on the
premises about 1015 pm Agent Landin entered the establishment and observed an individual
matching the description provided by the undercover agents At the time Agent Landin entered
the establishment there were only about seven to eight people in the bar area Agent Landin
made contact with the individual identified as Mr Sanchez by his Texas drivers license and
asked him to come outside
6 Staffs Ex 5
When Agent Landin first approached Mr Sanchez he seemed confused Agent Landin
fmiher observed Mr Sanchez had slurred speech and an odor of alcohol on his person
Mr Sanchez stated he had a few drinks but did not provide an exact number He stated that he
had a friend inside the establishment who could take him home but he could not recall his
friends name He then said his sister could come to the establishment to take him home
Agent Landin has encountered intoxicated people previously through his work in law
enforcement He stated that the odor of alcohol slmTed speech and swaying are all signs of
intoxication He further stated that missing ones mouth when drinking a beer would also be a
sign of intoxication and a bartender should pay attention to these signs He stated that
bartenders have a duty to pay attention to their customers and take note of unusual behaviors
Though such signs might not necessarily mean someone is intoxicated a baiiender should make
contact with patrons to ascertain the cause of such behaviors He further stated that not all
intoxicated individuals are belligerent or argumentative
On cross-examination Agent Landin stated that Mr Sanchez did not have red glassy
eyes and he was not belligerent Mr Sanchez was cooperative He did not break bottles start a
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGES
fight or indicate that he intended to drive a vehicle Agent Landin stated Mr Sanchez was not a
danger to himself or others When walking outside Mr Sanchez weaved but did not trip He
did not use the stage for balance Agent Landin stated he had never met Mr Sanchez prior to
that night and was not familiar with his regular speech pattern Agent Landin was trained to
conduct Standardized Field Sobriety Tests (SFST) including the Horizontal Gaze Nystagmus test
(HON) Walk and Turn and One Leg Stand but he did not administer SFST on Mr Sanchez
When Mr Sanchezs sister arrived he did not require assistance getting into her vehicle nor did
he stumble as he did so By the time his sister arrived Mr Sanchez was less intoxicated
Agent Landin stated that if a person has lost his motor skills or cannot fully comprehend
what he is doing he is intoxicated He agreed that the Code does not define intoxication and
that the Penal Code provides two definitions The Driving While Intoxicated (DWI) standard
defines intoxication as the loss of ones mental or physical faculties The definition for the
offense of Public Intoxication requires that an individual be a danger to himself or others
c Agent Dwight Green
On August 6 2016 Agent Green participated on the open team during the investigation
of the establishment The open team received notification that a violation had occurred and
entered the establishment Agent Green made contact with the server identified as Ali Kian
who was familiar with Mr Sanchez and said he was a regular customer of the establishment 8
Mr Kian was the only bartender working that night and two waitresses were also working
Mr Kian provided a receipt to Agent Green and stated that the entire balance did not belong to
Mr Sanchez Mr Kian further stated that Mr Sanchez had been at the bar for about 4 hours
during which time he consumed four beers Agent Green spoke to the manager of the
establishment Jessie Monseveiz and then reported to the parking lot where he observed
7 On re-direct examination Agent Sanchez clarified that SFST are not required by the TABC for this type of an investigation because bartenders are not trained to administer these tests Thus use of SFST to determine intoxication would be unfair because this would not be a skill that bai1enders would be able to utilize
8 Staffs Ex 6 9 Staffs Ex 7 consisted of the receipt Mr Kian provided to Mr Sanchez The receipt was almost entirely illegible with the exception of the total balance which was not clear Accordingly no weight was given to this exhibit
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE6
Mr Sanchez waiting for his ride Agent Green observed that Mr Sanchez had a dazed
expression glossy eyes and swayed from side to side
On cross-examination Agent Green admitted he had very little interaction with
Mr Sanchez Mr Kian told Agent Green that he (Mr Kian) did not believe Mr Sanchez to be
intoxicated
2 Respondents Evidence
a Ali Kian
At the time of this investigation Mr Kian had been employed as a bartender for the
establishment for approximately 4Y years As a bartender he is aware of the signs of
intoxication such as slurred speech making crazy scenes or speaking in a loud voice He needs
to be able to identify the signs of intoxication so that he can control his customers Mr IZian
stated that he never over-serves customers He further stated that his job security is more
important than the few extra dollars he would earn by over-serving
On the night in question Mr Gans shift began around 700 pm He was the only
bartender working and he was the only person serving Mr Sanchez Mr Kian has known
Mr Sanchez for about 2 years and is familiar with his normal appearance and manner of
walking Mr Sanchez normally drinks Michelob Ultra which is what he was drinking that
night Mr Kian did not observe Mr Sanchez acting abnormally that night Mr Sanchez did not
lean on the bar with his eyes closed nor did he sway or trip Additionally Mr Sanchezs eyes
were not red
The T ABC agents entered the bar area and told Mr Kian they needed to speak to him
One of the agents said Mr Sanchez was intoxicated Mr Kian told the agents that Mr Sanchez
had been at the establishment for 4 hours during which time he drank three and a half Michelob
Ultras Mr Kian told the agents he was sure Mr Sanchez was not intoxicated One of the agents
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE
told Mr Kian that Mr Sanchez had red eyes Mr Gan took a flashlight out into the parking lot
to show the agents that Mr Sanchezs eyes were not red
On cross-examination Mr Kian stated that he interacted with Mr Sanchez when he first
started his shift Mr Kian did not ask Mr Sanchez where he had been prior to aniving at the
establishment nor did he ask whether he had consumed alcohol prior to coming to the
establishment Mr Kian stated that he always evaluates his customers before serving them He
has been trained to identify intoxicated individuals by T ABC and by his manager On the night
in question he was not seller-server certified
b Mohammad Espari
Mohammad Espari has been the general manager of the establishment since 2004 As the
general manager his duties include hiring firing and training employees ordering supplies
and ensuring the club runs properly Mr Espari also holds monthly meetings with managers and
bartenders During these meetings he reminds employees not to sell to individuals who are
underage or intoxicated Additionally Mr Espari provides employees with a booklet when they
are hired At the end of the booklet employees sign a statement which provides in relevant part
I understand that our business is dedicated to safe and responsible sales and service of alcohol I will not knowingly serve alcohol to an underage or obviously intoxicated person
On August 6 2016 Mr Espari was not present at the establishment but he was aware
that T ABC agents came to the establishment on that date He acknowledged that the
establishment had a video surveillance system Mr Espari reviewed a segment of the
surveillance video footage during the hearing He stated that the angle of the camera was similar
to the angle from which the agents observed the bar during the investigation He further stated
there is nothing in the video footage to indicate Mr Sanchez was intoxicated
On cross-examination Mr Espari stated that the establishment requires the servers to be
T ABC certified but conceded there is no written policy regarding this requirement He stated
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
PAGESSOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION
that he understands that Mr Kians certification had expired at the time of this investigation
When he hires employees he asks for a copy of their certification According to Mr Espari the
employees are responsible for renewing their certification upon expiration The establishment
did not track employee certifications
c Video
Respondent offered a copy of the establishments surveillance video from the night of the
incidentdeg The video is approximately 1 I minutes long and depicts three T ABC agents entering
the establishment Two of the agents made contact with Mr Sanchez Mr Sanchez leaned over
to a patron seated to his left and spoke to him Mr Sanchez then walked away from the bar area
with the agents When exiting the establishment Mr Sanchez did not trip or stumble
IV RECOMMENDATION
The evidence establishes that Respondents agent servant or employee violated a section
of the Code by selling serving or delivering an alcoholic beverage to an intoxicated person It is
uncontested that Mr Kian was Respondents agent servant or employee It is further
uncontested that Mr Kian sold served or delivered an alcoholic beverage specifically beer to
Mr Sanchez The parties disagree however regarding the definition of intoxication and
whether Mr Sanchez was intoxicated
Staff argues that intoxication should be defined using the definition found in
Penal Code sect 490 I which is the definition of intoxication used for the offense of Driving While
Intoxicated Respondent argues that intoxication should be defined under Penal Code sect 4902
deg Respondents Ex 2
11 Under Penal Codesect 4901 intoxicated is defined as
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol controlled substance a drug a dangerous drug a combination of two or more of those substances or any other substances into the body or
(B) having an alcohol concentration of 008 or more
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE9
which provides the definition for the offense of Public Intoxication 12
12 Under Penal Codesect 4902 it is a crime ifa person appears in a public place while intoxicated to the degree that the person may endanger the person or another In support of this definition Respondent cites 16 Texas Administrative Code (TAC) sect 45103(b) which provides that Penal Code sect 4902 applies to the charge of excessive consumption The charge in this case however is sale to an intoxicated person
After reviewing the briefs
and arguments of both parties the ALJ finds that while the Code may have previously applied
the definition of intoxication found in Penal Code sect 4901 for purposes of sale of alcohol to an
intoxicated person it is no longer clear that this definition applies The Code cu1Tently
references both Penal Code definitions in Appendix F However neither definition is clearly
linked to the sale of alcohol to an intoxicated person
As neither definition of intoxication proposed by the parties clearly applies the ALJ finds
the appropriate analysis is a reasonably prudent person standard A licensee owes a duty to the
general public not to serve alcohol to a patron when the licensee knows or should have known
the patron is intoxicated A specific intent to violate the statute is not required In this case
Mr Kian is held to an objective standard of what a reasonably prudent bartender would have
observed Upon a review of the evidence the ALJ finds Mr Sanchez was intoxicated and
further finds Mr Kian should have recognized the signs of intoxication exhibited by
Mr Sanchez
After observing Mr Sanchez that evening TABC agents and Mr Kian reached opposite
conclusions regarding his sobriety In support of Mr Kians contention that Mr Sanchez was
not intoxicated Respondent offered the surveillance video This footage is brief compared to the
hour of observation conducted by Agent Sauceda Accordingly the ALJ does not find the
surveillance footage to be dispositive of Mr Sanchezs condition on the night in question
Agent Sauceda observed that Mr Sanchez had the following signs of intoxication he
struggled to keep his eyes open tilted his head back closed his eyes for a few seconds and
swayed from side to side while standing Additionally Mr Sanchez missed his mouth when
attempting to drink from a bottle of beer on more than one occasion Agent Landin fmther
observed that Mr Sanchez had slurred speech and an odor of an alcoholic beverage In addition
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 10
Mr Sanchez was unable to recall the name of a friend who was present at the establishment with
him
While Agent Sauceda observed Mr Sanchez from the tables located near the bar
Mr Kian was in even closer proximity to Mr Sanchez and had a _greater opportunity to observe
his behavior By all accounts there were not many other patrons in the bar and Mr Kian should
have been able to focus his attention on Mr Sanchez Additionally as an experienced bartender
Mr Kian should have been able to identify signs of intoxication Mr Kian testified that he was
familiar with Mr Sanchez who was a regular customer and did not believe him to be
intoxicated Though Mr Kian was more familiar with Mr Sanchez than the T ABC agents the
ALT is mindful of Mr Kians potential bias as Respondents employee Accordingly the ALJ
found the testimony of Agents Sauceda and Landin to be more credible regarding
Mr Sanchezs level of intoxication
Staff recommended that Respondents permit be suspended for 18 days without the
option to pay a civil penalty In support of this request Staff notes that this is
Respondents second sale to an intoxicated person a public safety violation in less than
36 months Staff further argues that such a suspension is warranted because Respondent has no
procedure for tracking whether bartenders and servers are maintaining seller certification
Additionally Staff notes that Mr Kian did not have a current seller certification at the time this
incident occurred
Pursuant to Code sect 1 l64(a) a permittee shall be given an opportunity to pay a civil
penalty in lieu of suspension unless the basis for the suspension is a violation of one of several
listed violations including selling to an intoxicated person under Code sect l l61(b)(14) Because
this is Respondents second sale to an intoxicated person in 36 months and given
Respondents inability to track the seller certification for its employees and Mr Kians lack of
seller certification at the time of this incident the ALJ recommends an 18-day suspension
without the opportunity to pay a civil penalty
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE II
V FINDINGS OF FACT
I MIS Enterprises Inc dba Moulin Rouge (Respondent) holds a Mixed Beverage Permit and a Mixed Beverage Late Hours Permit for the premises located at 8930 Winkler Drive Houston Harris County Texas 77017 The permit was issued on May 8 2000 and has been continuously renewed
2 On August 6 2016 Agent Jeremiah Sauceda went to Respondents establishment in an undercover capacity
3 The establishment had only one bar and one bartender working There were about 20 patrons in the establishment six to seven of those patrons were at the bar
4 Agent Sauceda sat at a table about ten feet away from the bar area He had a clear unobstructed view of the bar
5 Agent Sauceda observed patron Javier Sanchez at the bar
6 Mr Sanchez displayed signs of intoxication including struggling to keep his eyes open tilting his head back closing his eyes for a few seconds and swaying from side to side when standing On more than one occasion Mr Sanchez attempted to drink from a beer bottle and missed his mouth
7 Mr Sanchez was drinking a Michel ob Ultra beer
8 Mr Sanchez leaned into the bartender and ordered another beer
9 The bartender identified as Ali Kian served Mr Sanchez another beer
I0 Mr Kian is a bartender for Respondents establishment where he has worked for approximately 41 years
11 On August 6 2016 Agent Henry Landin participated 111 the investigation of the establishment as a member of the open team
12 Agent Landin observed Mr Sanchez exhibited signs of intoxication including slurred speech and an odor of an alcoholic beverage on his person In addition Mr Sanchez stated that he had a friend with him at the establishment but he could not recall the name of his friend
13 On March 7 2017 Staff of the TABC issued a notice of hearing informing all parties of the hearing in this matter Staffs notice contained the time place and nature of the hearing stated the legal authority and jurisdiction under which the hearing was to be held referenced the paiiicular sections of the statutes and rules involved and included a short plain statement of the matters asserted
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
SOAH DOCKET NO 458-17-2960 PROPOSAL FOR DECISION PAGE 12
14 The hearing convened on June 2 2017 before State Office of Administrative Hearings (SOAH) Administrative Law Judge Whitney L Stoebner Staff was represented by attorney Shelia A Lindsey-Sanders Respondent was represented by attorney Clyde Burleson The record closed on June 16 2017 in order for the parties to submit written closing arguments
VI CONCLUSIONS OF LAW
I TABC has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and sect 1161
2 SOAH has jurisdiction over all matters related to conducting a 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 Texas Government Codesectsect 2001051-052
4 Respondent violated Texas Alcoholic Beverage Codesectsect l l6l(b)(2) and (14)
5 Based on the foregoing findings of fact and conclusions of law Respondents permit should be suspended for a period of 18 days without the opportunity to pay a civil penalty Codesect l l6l(b)(2) (14) and 1164 (a)
SIGNED August 4 2017
~~d 8amp4LltLlt WHITNEY k TO EBNER ADMINISTRATIVE LAW TUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
DOCKET NO 64114
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER
CAME ON FOR CONSIDERATION this 22nd day of January 2018 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 Whitney Stoebner presiding The hearing
convened on June 2 2017 and the SOAH record closed June 16 2017 The Administrative Law
Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of
Law on August 4 2017 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 No exceptions
were filed
After review and due consideration of the Proposal for Decision and I adopt the Findings
of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the
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
One point made by the ALJ in her analysis merits clarification She disagreed with both
partiesrsquo proffered definitions of the word ldquointoxicatedrdquo as applied to Sections 1161(b)(2) and (14) of the Texas Alcoholic Beverage Code The correct definition of ldquointoxicatedrdquo is that found in Section 4901 of the Penal Code as argued by the Commission in front of the ALJ Section
4901 provides for a legal definition of the term ldquointoxicatedrdquo while Section 4902 codifies the elements of the crime of public intoxication Because Respondent is not being charged with the
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
__________________________________________
crime of public intoxication that section is inapposite to this analysis Instead the general
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
definition of ldquointoxicatedrdquo as found in Section 4901 is the appropriate definition to apply for the Texas Alcoholic Beverage Code
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 that the privileges granted by the Commission and the
activities authorized under the above permit by the Code will be SUSPENDED beginning at
1201 am on February 15th 2018 and shall remain suspended for EIGHTEEN (18) DAYS
This Order will become final and enforceable on the 15th day of February 2018
unless a Motion for Rehearing is filed by the 14th day of February 2018
SIGNED this the 22nd day of January 2018 at Austin Texas
Matthew Chaplin Deputy Executive Director
Texas Alcoholic Beverage Commission
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
__________________________________________
DocuSign Envelope ID 308D5F54-CC52-42BF-ABDB-477B28768A0D
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 22nd day of January 2018
Dina Powell Legal Assistant
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035677982
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035677999
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
DOCKET NO 641144
TEXAS ALCOHOLIC BEVERAGE
COMMISSION Petitioner
sect
sect
sect
sect
VS sect
sect
sect
sect
MIS ENTERPRISES INC
DBA MOULIN ROUGE
Respondent
sect
sect
sect
sect
sect
sect
PERMIT MB471800 LB sect
sect
sect
HARRIS COUNTY TEXAS
(SOAH DOCKET NO 458-17-2960)
sect
sect
BEFORE THE TEXAS
ALCOHOLIC
BEVERAGE COMMISSION
ORDER OVERRULING MOTION FOR REHEARING
1
CAME ON FOR CONSIDERATION this 15th day of March 2018 the above-styled
and numbered cause
An Order in this cause was issued on January 22 2018 suspending Respondentrsquos permits for 18 days On February 14 2018 Respondent timely filed a Motion for Rehearing Petitioner
timely filed a response to the motion on March 1 2018
Respondent asserts that by failing to define ldquointoxicationrdquo Alcoholic Beverage Code (ldquoCoderdquo) sect1161(b)(14) is unconstitutionally vague
In Campos v State 623 SW2d 657 (Tex Crim App 1981) the defendant appealed his
conviction for the unlawful sale of an alcoholic beverage to an intoxicated person in violation of
Code sect10163 Defendant contended that the lack of a definition of ldquointoxicatedrdquo or ldquointoxicationrdquo in the Code rendered sect10163 unconstitutional The Court disagreed that the failure to define
ldquointoxicatedrdquo in sect10163 meant that the statute was unconstitutionally vague ldquoA person of
common intelligence can determine with reasonable precision what conduct it is his duty to avoid
under the statuterdquo
Four years later the same court found a provision of the Code unconstitutionally vague
In Cotton v State 686 SW2d 140 (Tex Crim App 1985) the Court ruled that Code sect6171(a)(6)
as then written was unenforceable as a penal sanction At that time the section provided that a
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
license could be suspended or cancelled if the licensee ldquosold served or delivered beer to a person
showing evidence of intoxicationrdquo [Emphasis added] The Court distinguished Campos because
the statute in question there (which used but did not define the term ldquointoxicatedrdquo) provided sufficient guidance for a person of common intelligence to determine with reasonable precision
the conduct to be avoided In response to the decision in Cotton the legislature amended Code
sect6171(a)(6) which now provides that a license could be suspended or cancelled if the licensee
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
ldquosold served or delivered an alcoholic beverage to an intoxicated personrdquo [Emphasis added]
In this proceeding Respondent was found to have violated Code sect1161(b)(14) which
provides that a permit can be suspended or cancelled if the permittee ldquosold or delivered an alcoholic beverage to an intoxicated personrdquo The use of the undefined term ldquointoxicatedrdquo in Code sect1161(b)(14) mirrors its usage in the amended version of Code sect6171(a)(6)
The Court of Criminal Appeals having found the use of the undefined term ldquointoxicatedrdquo in Code sect10163 not to be unconstitutionally vague in Campos and the legislature having relied
on the use of the undefined term ldquointoxicatedrdquo to remedy the unconstitutionally vague language in
an earlier version of Code sect6171(a)(6) Respondentrsquos contention that the use of the undefined
term ldquointoxicatedrdquo renders Code sect1161(b)(14) unconstitutionally vague is without merit
For the reasons stated in Petitionerrsquos Response to Respondentrsquos Motion for Rehearing and
as stated in the January 22 2018 Order in this proceeding Respondentrsquos contention that the wrong
standard of intoxication was applied is also without merit
Having fully considered the arguments set forth in the Motion for Rehearing and the
Response thereto Respondents Motion for Rehearing is OVERRULED
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 granted or adopted herein
IT IS THEREFORE ORDERED
IF THIS ORDER IS NOT APPEALED WITHIN THE TIME ALLOWED BY
ALCOHOLIC BEVERAGE CODE sect1167 the privileges granted by the Commission and the
activities authorized under the above permits by the Code will be SUSPENDED beginning at
1201 am on May 9 2018 and shall remain suspended for EIGHTEEN (18)
CONSECUTIVE DAYS
IF THIS ORDER IS APPEALED AND THE DECISION IS AFFIRMED the
privileges granted by the Commission and the activities authorized under the above permits by
the Code will be SUSPENDED beginning at 1201 am on the fifteenth (15th) day following
the date the decision is affirmed whether by Order or by operation of law and shall remain
suspended for EIGHTEEN (18) CONSECUTIVE DAYS
2
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
__________________________________________
__________________________________________
Pursuant to Government Code sect2001144(a)(2)(A) this Order is effective on the date
it is signed
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
SIGNED this the 15th day of March 2018 at Austin Texas
Matthew Chaplin Deputy 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 15th day of March 2018
Martin Wilson Assistant General Counsel
Texas Alcoholic Beverage Commission
Whitney L Stoebner
ADMINISTRATIVE LAW JUDGE
State Office of Administrative Hearings
2020 North Loop West Suite 111
Houston TX 77018
VIA FACSIMILE (512) 322-2061
MIS Enterprises Inc
dba Moulin Rouge
RESPONDENT
8930 Winkler Dr
Houston TX 77017-5804
VIA FIRST CLASS MAIL CMRRR 70170660000035678224
Clyde Burleson
ATTORNEY FOR RESPONDENT
1533 W Alabama Suite 100
Houston TX 77006
VIA FIRST CLASS MAIL CMRRR 70170660000035678231
3
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4
DocuSign Envelope ID 872BD648-4DD2-4507-A9A0-B283406A0300
Shelia Lindsey
ATTORNEY FOR PETITIONER
TABC Legal Division
VIA E-MAIL Shelialindseytabctexasgov
4