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1 DOCKET NOS , TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner VS. EL DURANGUENSE FORT WORTH, INC. D/B/A EL DURANGUENSE, Respondent PERMIT MB831436, LB, PE TARRANT COUNTY, TEXAS (SOAH DOCKET NO ) BEFORE THE TEXAS ALCOHOLIC BEVERAGE COMMISSION ORDER CAME ON FOR CONSIDERATION this 16th day of June, 2017, 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 Monica Garza presiding. The hearing convened on January 6, 2017 and the SOAH record closed on January 24, The Administrative Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of Law on March 6, 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. Respondent filed exceptions on March 14, Petitioner did not file a response. On April 20, 2017, the Administrative Law Judge filed a letter indicating that the exceptions were without merit. After review and due consideration of the Proposal for Decision, I adopt the Findings of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the Proposal for Decision and incorporate those Findings of Fact and Conclusions of Law into this Order, as if such were fully set out and separately stated herein. All motions, requests for entry of Proposed Findings of Fact and Conclusions of Law, and any other requests for general or specific relief submitted by any party are denied, unless specifically adopted herein. Page 1 of 3

2 IT IS THEREFORE ORDERED that the privileges granted by the Commission and the activities authorized under the above permits by the Code will be SUSPENDED, without the option to pay a civil penalty in lieu thereof (pursuant to Alcoholic Beverage Code 11.64(a)), beginning at 12:01 a.m. on July 13, 2017 and shall remain suspended for TWENTY EIGHT (28) CONSECUTIVE DAYS. IT IS FURTHER ORDERED that UNLESS a civil penalty in the amount of $4, is paid ON OR BEFORE July 18, 2017, the privileges granted by the Commission and the activities authorized under the above permits by the Code shall remain SUSPENDED for an additional FOURTEEN (14) CONSECUTIVE DAYS, beginning at 12:01 a.m. on August 10, This Order will become final and enforceable on the 12th day of July, 2017, unless a Motion for Rehearing is filed by the 11th day of July, SIGNED this the 16th day of June, 2017, at Austin, Texas. Edwin C. Swedberg, Acting 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 16th day of June, Page 2 of 3

3 Martin Wilson, Assistant General Counsel Texas Alcoholic Beverage Commission Monica Garza ADMINISTRATIVE LAW JUDGE State Office of Administrative Hearings 300 W. 15 th Street, Suite 504 Austin, TX VIA FACSIMILE: (512) El Duranguense Fort Worth, Inc. d/b/a El Duranguense RESPONDENT 3233 Marie Lane Fort Worth, TX VIA FIRST CLASS MAIL, CMRRR # Timothy Griffith ATTORNEY FOR RESPONDENT Griffith and Johnson, PLLC 101 E. Park Blvd., Suite 600 Plano, TX VIA FIRST CLASS MAIL, CMRRR # Edgar Korzeniowski ATTORNEY FOR PETITIONER TABC Legal Division VIA edgar.korzeniowski@tabc.texas.gov Page 3 of 3

4 TEXAS ALCOHOLIC BEVERAGE COMMISSION CIVIL PENALTY REMITTANCE DOCKET NUMBER: , REGISTER NUMBER: NAME: El Duranguense Fort Worth, Inc. TRADENAME: El Duranguense ADDRESS: 3233 Marie Lane, Fort Worth, Texas DUE DATE: July 18, 2017 PERMITS OR LICENSES: MB831436, LB, PE AMOUNT OF PENALTY: $4, Amount remitted $ Date remitted You may pay a civil penalty rather than have your permits and licenses suspended if an amount for civil penalty is included on the attached order. YOU HAVE THE OPTION TO PAY THE CIVIL PENALTY ONLY IF YOU PAY THE ENTIRE AMOUNT ON OR BEFORE THE DUE DATE. AFTER THAT DATE YOUR LICENSE OR PERMIT WILL BE SUSPENDED FOR THE TIME PERIOD STATED ON THE ORDER. Mail this form with your payment to: TEXAS ALCOHOLIC BEVERAGE COMMISSION P.O. Box Austin, Texas Overnight Delivery Address: 5806 Mesa Dr., Austin, Texas You must pay by postal money order, certified check, or cashier's check. No personal or company check nor partial payment accepted. Your payment will be returned if anything is incorrect. You must pay the entire amount of the penalty assessed. Attach this form and please make certain to include the Docket # on your payment. Signature of Responsible Party Street Address P.O. Box No. City State Zip Code Area Code/Telephone No. Page 1 of 2

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6 State Office of Administrative Hearings Lesli G. Ginn Chief Administrative Law Judge March 6, 2017 Sherry Cook Executive Director Texas Alcoholic Beverage Commission 5806 Mesa Drive Austin, Texas VIA REGULAR MAIL RE: SOAH Docket No ; TABC Case Nos , Texas Alcoholic Beverage Commission vs El Duranguense Fort Worth, Inc. D/B/ A El Duranguense Dear Ms. Cook: Please find enclosed a Proposal for Decision m this case. recommendation and underlying rationale. It contains my Exceptions and replies may be filed by any party in accordance with 1 TEX. ADMIN. CODE (c), a SOAH rule which may be found at JV/Jal Enclosure xc Edgar M. Korzeniowski, Staff Attorney, Texas Alcoholic Beverage Commission, 427 W. 20 th Street, Suite 600, Houston, TX VIA REGULAR MAIL Emily Helm, General Counsel, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX VIA REGULAR MAIL Judith Kennison, Senior Attorney, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, TX VIA REGULAR MAIL (with Certified Evidentiary Record and! Hearing COis) Timothy E. Griffith, Attorney At Law, Griffith & Johnson, PLLC, 101 East Park Blvd., Suite 600, Plano, TX VIA REGULAR MAIL 300 W. 15 th Street, Suite 504, Austin, Texas 78701/ P.O. Box 13025, Austin, Texas (11ain) (Docketing) (Fax)

7 SOAH DOCKET NO (fabc CASE NOS , ) TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner v. EL DURANGUENSE FORT WORTH, INC. D/B/A EL DURANGUENSE, Respondent PERMIT NO. MB , LB & PE TARRANT COUNTY, TEXAS BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS PROPOSAL FOR DECISION The Texas Alcoholic Beverage Commission (T ABC) staff (Petitioner) brought this enforcement action against El Duranguense Fort Worth, Inc. d/b/a El Duranguense (Respondent) for its premises located at 3709 Mansfield Highway, Fort Worth, Tarrant County, Texas, alleging that Respondent sold and permitted consumption of alcoholic beverages during prohibited hours, permitted the solicitation of drinks for consumption, and failed to timely provide requested records, in violation of the Texas Alcoholic Beverage Code (Code). Based on the evidence presented, the Administrative Law Judge (ALJ) finds the alleged violations occurred, with the exception of the records production violation. TI1e ALJ reconnnends that Respondent's pem1it be suspended for 14 days for Sale During Prohibited Hours in TABC Case No , without the opportunity to pay a civil penalty; 14 days for Drink Solicitation in T ABC Case No , without the opportunity to pay a civil penalty; and 14 days for Consumption During Prohibited Hours in T ABC Case No , with an opportunity to pay a civil penalty in the amount of$4,200. I. JURISDICTION, NOTICE AND PROCEDURAL HISTORY Jurisdiction and proper notice were not disputed; therefore, those matters are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

8 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE2 On January 6, 2017, a hearing convened at the State Office of Administrative Hearings in Fort Worth, Texas, before ALJ Monica Garza. Petitioner was represented by staff attorney Edgar M. Korzeniowski. Respondent appeared and was represented by attorney Timothy E. Griffith. Following presentation of evidence, and at the request of the parties, the record was left open to allow the filing of written closing arguments. The record closed on January 24, II. LEGAL STANDARDS AND APPLICABLE LAW T ABC exercises statewide regulatory authority over the manufacture, sale, distribution, transportation, and possession of alcoholic beverages, including the issuance oflicenses and permits to entities subject to its regulation.' T ABC may suspend for not more than 60 days or cancel a pennit ifit finds that the permittee violated a provision of the Code or a T ABC rule. 2 The Code provides for suspension or cancellation of a permit ift ABC finds the permittee sold, served, delivered, consumed, or permitted consumption of an alcoholic beverage at a time when its sale is prohibited. 3 An establishment with a late-hours permit may not sell, serve, or deliver an alcoholic beverage after 2:00 a.m. or allow consumption of an alcoholic beverage after 2: 15 a.m. 4 Further, a permittee may not allow the "solicitation of any person to buy drinks for consumption by the retailer or any of the retailer's employees." 5 Solicitation is "presumed if an alcoholic beverage is sold or offered for sale for an amount in excess of the retailer's listed, advertised, or customary price," and "[t]he presumption may be rebutted only by evidence presented under oath." 6 Finally, T ABC "may require persons engaged in the alcoholic beverage business to provide 1 Tex. Alco. Bev. Code Tex. Alco. Bev. Code (b)(2). Tex. Alco. Bev. Code (b)(22)-(23). Tex. Alco. Bev. Code Tex. Alco. Bev. Code 104.0l(a)(4). 6 Tex. Alco. Bev. Code 104.0l(b).

9 SOAH DOCKET NO PROPOSAL FOR DECISION PAGEJ information, records, or other documents the commission finds necessary to accomplish the pur" of the Code. 7 More specifically, T ABC may "compel the production of pertinent books, accounts, records, documents, and testimony. " 8 T ABC may seek relief in district court to enforce production as described above. 9 T ABC has adopted a schedule of sanctions which may be imposed for each violation of the Code or T ABC rules. 10 III. EVIDENCE A. Background Petitioner holds a Mixed Beverage Permit which includes designations for Late Hours and Beverage Cartage Pennits. Those pennits were initially issued by TABC on February 12, 2013, and they have been renewed. T ABC previously took action against Petitioner's permits for "Sell/Serve/Deliver During Prohibited Hours," "Soliciting Alcoholic Beverages," and "Place or Manner" violations occurring on February 20, B. Events Occurring on May 14, 2016 On May 14, 2016, TABC Agents Erasmo Esteves and Leo Sandoval, dressed in civilian clothing, were working in an undercover capacity on Respondent's licensed premises. Agent Esteves provided the following testimony regarding his interactions and observations at the nightclub. 7 Tex. Alco. Bev. Code Tex. Alco. Bev. Code 5.44(a)(6). Tex. Alco. Bev. Code 5.44(b). 10 Tex. Alco. Bev. Code 5.362; 16 Tex. Admin. Code ch. 34.

10 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE4 Agent Esteves entered the club at 1: 52 a.m. and ordered a $6 bottle of Dos Equis beer. Around 2:00 a.m., a male with an apron and ordering pad began passing out plastic cups to patrons. Upon inqui ry, Agent Esteves was advised that customers were supposed to pour their remaining alcoholic beverages into the plastic cups. Agent Esteves poured his remaining beer into a plastic cup, and the employee took his beer bottle. Around 2:30 a.m., Agent Esteves ordered Corona beer, and an employee produced a plastic cup full ofliquid. Agent Esteves declined the drink after being told he would only know it was Corona upon drinking the contents of the cup. After Agent Esteves declined the purchase, he observed a lady pouring Corona beer into plastic cups. He then approached an employee, later identified as Estafania Del Rosario Huerta Martinez, and ordered Corona beer. Ms. Martinez sold Agent Esteves one of the plastic cups for $6. Once the sale occurred, Agent Esteves notified Agent Sandoval, and the open team, consisting of uniformed enforcement agents posted outside the establislunent, was also notified. After conducting his transaction, Agent Esteves sat down at the dance floor, and a lady, later identified as Veronica Vento, approached him to dance. Agent Esteves danced with Ms. Vento, and he gave her $20 for an alcoholic beverage purchase. At about 2 :48 a.m., Ms. Vento personally retrieved the drink from the bar area being worked by Ms. Martinez and another employee, Carmen Daysi. Agent Esteves was charged $16 for the drink. Agent Esteves concluded that Ms. Vento was an employee because he observed her dancing with a waiter earlier in the evening, she described the waiter as her coworker as opposed to her boyfriend, she claimed to be an employee, and she was later seen clearing off tables. Although Ms. Vento was not wearing the same nightclub shirt as the other employees, Agent Esteves believed she was working as a "pony girl."11 In addition to dancing with Agent Esteves, Ms. Vento also sat in his lap during their encounter. 11 A "pony giir wears tight-fitting clothing and orders drinks for patrons at an enhanced price, splitting the difference with the owner.

11 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE5 TABC Agent Nichole Hamilton, part of the open team, entered Respondent's premises after receiving violation information from the undercover agents. Agent Hamilton contacted Dario Villegas, Respondent's owner, who provided translation assistance for the uniformed agents. Mr. Villegas was asked to provide employee records during his conversation with Agent Hamilton, and he agreed to follow up with the records. According to Agent Hamilton, Mr. Villegas never provided the records to her, though she acknowledged that she never made a follow-up request. She was also not aware that the records were provided to T ABC in late September 2016, in relation to another investigation. Accoding to Agent Hamilton, her investigation ended in May Sergeant Matthew Kelso was also part of the open team, and he contacted Ms. Vento on the night in question. According to Sergeant Kelso, he observed the strong odor of an alcoholic beverage on Ms. Vento's breath during the after-hours contact. The following citations were issued regarding the May 14, 2016 investigation: TABC Docket No : On or about May 14, 2016, Estafania Del Rosario Huerta Martinez, an agent, servant, or employee of Respondent, El Duranguense Fort Worth, Inc., sold, served, or delivered, an alcoholic beverage during prohibited hours... to wit: Ms. Martinez sold beer to an undercover agent at or about 2:34 a.m. T ABC Docket No , Count I: On or about May 14, 2016, Respondent, El Duranguense Fort Worth, Inc., or Respondent's agent, servant, or employee solicited or permitted the solicitation of any person to buy drinks for consumption by the retailer or any of the retailer's employees... to wit: Veronica Vento solicited and sold a drink to an undercover agent at or about 2:48 a.m., for an amount in excess of the retailer's customary price, which she personally retrieved from the bar area being worked by Estafania Del Rosario Huerta Martinez and Carmen Daysi, and personally delivered the said drink to the undercover agent. TABC Docket No , Count II: On or about May 14, 2016, an agent, servant, or employee of Respondent, El Duranguense Fort Worth, Inc., pennitted consumption of an alcoholic beverage on the licensed premises at a time when the consumption of alcoholic beverages is prohibited... to wit: Ms. Vento possessed an alcoholic beverage as alleged in Count I, which was intended to be consumed during prohibited hours. T ABC Docket No , Count III: On or about May 22, 2016, Respondent, El Duranguense Fort Worth, Inc., failed to timely provide records... to wit: on May 14, 2016, T ABC Agent Nichole Hamilton verbally requested Dario Villegas, who is named on the pennit,

12 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE6 to provide the Commission a list of employees by May 21, He agreed to do so, and has not followed up to date. C. Parties' Positions In regard to the Prohibited Hours violations, Petitioner argued that Agent Esteves ordered Corona beer and received a cup from the location where he observed Corona beer being poured into plastic cups. Further, based on testimony provided during the hearing, Ms. Vento was allowed to possess and consume an alcoholic beverage during prohibited hours. Regarding the Drink Solicitation violation, Ms. Vento represented herself as Respondent's employee and engaged in employee-like conduct. She asked Agent Esteves to purchase a beer for her, and she charged him $10 in excess of the customary price of the drink. Finally, the employee records were not produced in a timely manner. Although such records were produced later in regards to an unrelated investigation, those records were not made available to agents who were investigating the May 2016 violations. In regard to the Prohibited Hours violations, Respondent argued that T ABC should not impose separate sanctions for both delivery and consumption of alcoholic beverages during prohibited hours, as those actions involved the same conduct on the same date. Additionally, regarding Ms. Vento's alleged consumption after hours, Respondent argued that she could have still smelled of alcoholic beverage based on consumption during legal hours, or, in the alternative, she could have smelled of alcoholic beverage based on consumption of non-alcoholic beer. Further, regarding the Drink Solicitation allegation, Respondent argued there was insufficient evidence to establish that Ms. Vento was Respondent's employee. There was no evidence to establish that Ms. Vento was paid by, supersed by, or under contract with Respondent. According to Respondent, Ms. Vento's hearsay statements regarding her employment should not be considered. Finally, in regards to the records production, Respondent argued that the Code, though allowing T ABC to request production, does not provide a penalty for failure to produce. Although another provision allows T ABC to compel production, such action was not necessary because Respondent ultimately produced the records. Respondent also argued that Agent Hamilton never followed up on her verbal request, and she did not need the records because she had already reached her own conclusions regarding Ms. Vento's employment.

13 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE7 IV. ANALYSIS A. TABC Docket No The A.J finds that Respondent sold and delivered an alcoholic beverage during prohibited hours. On May 14, 2016, Ms. Martinez was working as Respondent's employee. Specifically, she was tending to the bar area of the premises. T ABC Agent Esteves was working undercover on Respondent's premises on that date. Afer 2:30 a.m., which was a prohibited time for the sale and delivery of alcoholic beverages, Agent Esteves observed Corona beer being poured into plastic cups at the bar area. He approached Ms. Martinez and ordered a Corona, paid her $6, and received one of the plastic cups of Corona in return. The ALJ notes that Mr. Villegas, the permit holder, was present in the bar at the time, and must have been aware that beer was being sold to customers in plastic cups. Respondent's actions were in violation of Code l l.61(b)(23) and I Respondent was previously sanctioned for the same Code violation for conduct occurring on February 20, The penalty chart recommends a I 0-14-day suspension, with an administrative penalty option of$300 per day. 12 Petitioner requested a 14- day suspension for the violation, with no opportunity to pay a civil penalty. Based on Respondent's licensing history and the fact that the nightclub, by all appearances, was completely i gn oring the prohibited hours provisions of the Code, the ALJ recommends a 14-day suspension with no opportunity to pay an administrative penalty in lieu of the suspension. B. TABC Docket No , Count I The ALJ finds that Respondent's agent, servant, or employee solicited a drink purchase from a patron. On May 14, 2016, Ms. Vento was an agent, servant, or employee of Respondent. Ms. Vento attached herself to Agent Esteves, dancing with him and sitting in his lap. She asked him to purchase a drink for her, and he obliged. Ms. Vento told Agent Esteves that she was an employee of the establislnnent, she conducted the drink transaction for him, including taking the drink from the bar area, and she was later seen cleaning tables in the club. Ms. Vento charged Agent Esteves $16 for the same type of alcoholic beverage for which he had paid $6 only a few minutes prior. Respondent's actions Tex. Admm. Code 34.2.

14 SOAH DOCKET NO PROPOSAL FOR DECISION PAGES were in violation of Code l(a)( 4). Respondent was previously sanctioned for the same Code violation for conduct occurring on February 20, The penalty chart recommends a day suspension, with an administrative penalty option of $300 per day.13 Petitioner requested a 14-day suspension for the violation, with no opportunity to pay a civil penalty. Based on Respondent's recent sanction for the same violation, the ALJ reconunends a 14-day suspension with no opportunity to pay an administrative penalty in lieu of the suspension. C. TABC Docket No , Collt II The ALJ finds that Respondent permitted the consumption of an alcoholic beverage during prohibited hours. On May 14, 2016, Ms. Vento possessed the alcoholic beverage she retrieved from the bar which was being manned by Ms. Martinez and Ms. Daysi. The time was approximately 2:48 a.m., so the drink was obviously intended for consumption during prohibited hours. Further, Ms. Vento had the strong odor of an alcoholic beverage on her breath when she was later contacted by uniformed agents. Contrary to Respondent's argument, the ALJ does not find the instant violation to be cwnulative of the violation in Docket No That violation dealt with the sale and delivery ofan alcoholic beverage to Agent Esteves for his consumption. This violation deals with Ms. Vento 's possession of an alcoholic beverage for her own consumption. Respondent's actions were in violation of Code l 1.6 l(b)(22) and The penalty chart reconnnends a day suspension, with an administrative penalty option of$300 per day. 14 T ABC requested a 14-day suspension forthe violation, with an opportunity to pay an administrative penalty in the amount of$4, The ALJ reconunends the requested suspension and alternative penalty. D. TABC Docket No , Collt III Tex. Admin. Code Tex. Admin. Code T.AC reconunended a cumulative 28-day suspension, with opportunity to pay a civil penalty in the amount of $8,400, for Counts II and il.

15 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE9 The ALJ finds that Respondent did not timely produce the employee records in response to Agent Hamilton's verbal request on May 14, The ALJ notes that Agent Hamilton never followed up on the request, and no actual harm resulted from the failure to produce the documents, i.e., the failure did nothing to disprove Agent Hamilton's conclusion that Ms. Vento was Respondent's employee. Regardless of the circumstances in the instant case, Code 5.32 allows T ABC to require the producton of such records. However, the ALJ agrees with Respondent that no penalty is provided for the failure to comply with the request. Code 5.44(a)(6) provides a tool for TABC to gain compliance with a records request; however, the relief must be sought in district court. Based on the above analysis, the ALJ finds that no violation occurred in regards to the records request, and the requested 14-day suspension (with alternative $4,200 administrative penalty) should not be imposed. V. RECOMMENDATION The ALJ finds that on May 14, 2016, Respondent sold an alcoholic beverage during prohibited hours. For th.at violation, the ALJ reconnnends a 14-day suspension, with no opportunity to pay a civil penalty. On the same date, Respondent's agent, servant, or employee solicited a drink purchase from a patron. For that violation, the ALJ reconunends a 14-day suspension, with no opportunity to pay a civil penalty. On the same date, Respondent allowed the consumption of an alcoholic beverage during prohibited hours. For that violation, the ALJ reconnnends a 14-day suspension, with the opportunity to pay a $4,200 administrative penalty in lieu of suspension. The ALJ finds no violation occurred in regards to the failure of Respondent to timely produce employee records. VI. FINDINGS OF FACT I. El Duranguense Fort Worth, Inc. d/b/a El Duranguense (Respondent) holds Permit No. MB , LB & PE, issued by the Texas Alcoholic Beverage Conunission (TABC) for the premises located at 3709 Mansfield Highway, Fort Worth, Tarrant County, Texas. 2. Those pennits were initially issued by T ABC on February 12, 2013, and they have been renewed. 3. On May 14, 2016, TABC Agent Erasmo Esteves, dressed in civilian clothing, was working in an undercover capacity on Respondent's premises.

16 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE10 4. Agent Esteves entered the club at 1 :52 a.m. and ordered a $6 bottle of Dos Equis beer. 5. At 2 :00 a.m., Respondent's employee provided Agent Esteves with a plastic cup and instructed him to pour the remainder of his beer into the cup. The employee then collected Agent Esteves' bottle. 6. Afer 2:30 a.m., Estafania Del Rosario Huerta Martinez, Respondent's employee, sold Agent Esteves a plastic cup filled with Corona beer, at a price of$6. 7. Respondent's employee sold, served, or delivered an alcoholic beverage to Agent Eseves during prohibited hours. 8. At 2 :48 a.m., Veronica Vento approached Agent Esteves to dance, and she took $20 from him in order to purchase an alcoholic beverage. 9. Agent Esteves was charged $16 for the drink, and when approached later by a uniformed T ABC agent, Ms. Vento had the strong odor of an alcoholic beverage on her breath. IO. Ms. Vento danced with a waiter earlier in the evening, told Agent Esteves that the waiter was her co-worker, claimed to be an employee of the nightclub, and was later seen clearing off tables in the club. 11. Ms. Vento was Respondent's employee. 12. Ms. Vento solicited the purchase of an alcoholic beverage from Agent Esteves and charged him $10 more than the price normally charged for the drink. 13. Ms. Vento possessed an alcoholic beverage which was intended for consumption during prohibited hours. 14. A unifonned T ABC Agent, Nichole Hamilton, entered Respondent's premises after receiving violation information from Agent Esteves. 15. Agent Hamilton contacted Dario Villegas, Respondent's owner, and she verbally requested a copy of employee records. 16. Mr. Villegas agreed to follow up with the records, but he failed to do so. 17. Agent Hamilton never followed up on her records request before closing her investigation in May T ABC agents cited Respondent for the following: T ABC Docket No , Sale During Prohibited Hours; TABC Docket No , Count 1, Drink Solicitation; Count 2,

17 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE11 Consumption During Prohibited Hours; and Count 3, failing to timely produce requested records. 19. T ABC previously sanctioned Respondent for "Sell/Serve/Deliver During Prohibited Hours," Soliciting Alcoholic Beverage," and "Place or Manner" violations occurring on February 20, T ABC requested the following penalties: T ABC Case No , 14-day suspension with no opportunity to pay a civil penalty; T ABC Case No , Count l, 14-day suspension with no opportunity to pay a civil penalty; Counts 2 and 3, 28-day suspension, with the opportunity to pay a civil penalty of$8,400 in lieu of suspension. 21. On October 18, 2016, T ABC staff (Petitioner) issued its notice of hearing to Respondent. 22. The Notice of Hearing contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short plain statement of the factual matters asserted. 23. On January 6, 2017, a hearing convened at the State Offce of Administrative Hearings in Fort Worth, Texas, before Administrative Law Judge Monica Garza. Petitioner was represented by staff attorney Edgar M. Korzeniowski. Respondent appeared and was represented by attorney Timothy E. Griffith. Following presentation of evidence, and at the request of the parties, the record was left open to allow the filing of written closing arguments. The record closed on January 24, VII. CONCLUSIONS OF LAW I. TABC has jurisdiction over this matter. Tex. Alco. Bev. Code 6.01, The State Offce of Administrative Hearings has jurisdiction to conduct the hearing in this matter and to issue a proposal for decision containing findings of fact and conclusions oflaw. Tex. Gov't Code ch Proper and timely notice of the hearing was provided to Respondent. Tex. Gov't Code The hearing was conducted pursuantto the Administrative Procedure Act. Tex. Gov't Code ch Petitioner had the burden of proof by a preponderance of the evidence. 1 Tex. Admin. Code

18 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE On May 14, 2016, Respondent sold, served, or delivered an alcoholic beverage during prohibited hours. Tex. Alco. Bev. Code l l.6l(b)(23), I On May 14, 2016, Respondent's agent, servant, or employee solicited a drink purchase from a patron. Tex. Alco. Bev. Code 104.0l(a)(4). 8. On May 14, 2016, Respondent permitted the consumption ofan alcoholic beverage during prohibited hours. Tex. Alco. Bev. Code ll.6l(b)(22), Petitioner failed to prove an actionable violation under Texas Alcoholic Beverage Code Respondent's permit should be suspended for 28 days, with no opportunity to pay a civil penalty, and then an additional 14 days, with the opportunity to pay a civil penalty of$4,200 in lieu of suspension. 16 Tex. Ad.min. Code SIGNED March 6, )(!\IO:XI(".\ (;.\Ri''\.\Jlllll IS"fR.\l"IH. L\.W Jl"DGI:,:,:j \ l t' u H( L oi:,\l)\ff'ilfl 1 R \ I l\ t: Uf.'.,\kl'.(,S

19 STATE OFFICE OF ADMINISTRATIVE HEARINGS FT. WORTH OFFICE 6777 Camp Bowie Blvd Suite 400 Fm1Worth, Texas Phone: (817) Fax: (512) SERVICE LIST AGENCY: Alcoholic Beverage Commission, Texas (T ABC) STYLE/CASE: SOAH DOCKET NUMBER: REFERRING AGENCY CASE: , EL DURANGUENSE FORT WORTH INC DBA EL DURANGUENSE STATE OFFICE OF ADMINISTRATIVE HEARINGS REPRESENTATIVE/ ADDRESS TT011Y E. GRIFITH ATTORNEY AT LAW GRIFITH & JOHNSON, PLLC 101 EAST PARK BLVD., SUITE600 PL.ANO, TX (214) (PH) (855) (FAX) ADMINISTRATIVE LAW JUDGE ALJ MONICA GARZA PARTIES GRIFITH & JOHNSON, PLLC EDGAR M. KORZENIOWSKI TEXAS ALCOHOLIC BEVERAGE C011SSION 427 W. 20TH STREET. SUITE 600 HOUSTON, TX (817) (PH) (713) (FAX) TEXAS ALCOHOLIC BEVERAGE CO:tSSION xc: Docket Clerk, State Offce of Administrative Hearings Emily Hehn Offce of the General Counsel, TABC, Fax No Page I of!