DOCKET NOS , , and ORDER

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1 DOCKET NOS , , and TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner vs. BAINES BRADSHAW AND SMITH, LLC D/B/A BOTTOM BRACKET SOCIAL CLUB, Respondent PERMIT MB857145, LB BEXAR COUNTY, TEXAS (SOAH DOCKET NO ) BEFORE THE TEXAS ALCOHOLIC BEVERAGE COMMISSION ORDER CAME ON FOR CONSIDERATION this 27th day of October, 2016, the above-styled and numbered cause. After proper notice was given, this case was heard by the State Office of Administrative Hearings (SOAH), with Administrative Law Judge Ana Anchondo presiding. The hearing convened on February 24, 2016 and the SOAH record closed the same date. The Administrative Law Judge made and filed a Proposal for Decision containing Findings of Fact and Conclusions of Law on April 21, The Proposal for Decision was properly served on all parties, who were given an opportunity to file exceptions and replies as part of the record herein. On May 4, 2016, Respondent's Response and Objections to the ALJ's Proposal for Decision was filed. These exceptions assert that Respondent was unable to determine how the recommended sanction was calculated. Additionally, Respondent objected that the Administrative Law Judge failed to consider testimony that a criminal charge for failure to allow inspection of the premises was dismissed and that a sanction for this alleged violation should therefore not be imposed pursuant to Alcoholic Beverage Code ( c ). On June 10, 2016, the Administrative Law Judge issued Order No. 4 as her Response to Exceptions. Order No. 4 contains a chart listing each violation with the recommended sanction stated separately for each violation. The Order states that all violations were calculated as first violations and that the maximum penalty for each violation (as set forth in Chapter 34 of the Page 1 of 4

2 Commission's rules) was used in the calculation. As a result of this recalculation, the Administrative Law Judge in Order No. 4 recommends that Respondent's permits be suspended for 80 days or, in lieu thereof, that Respondent be allowed to pay a civil penalty in the amount of $24, In addition, Order No. 4 modifies proposed Finding of Fact No. 6 and Proposed Conclusion of Law No. 6 to reflect that the criminal charge regarding failure to allow inspection of the premises was dismissed and that no sanction is assessed for that alleged violation, pursuant to Alcoholic Beverage Code ( c ). After review and due consideration of the Proposal for Decision, Respondent's exceptions, and Order No. 4, and with a modification only to Conclusion of Law No. 13, I adopt the Findings of Fact and Conclusions of Law of the Administrative Law Judge that are contained in the Proposal for Decision, as modified by the Administrative Law Judge in Order No. 4, and incorporate those Findings of Fact and Conclusions of Law into this Order, as if such were fully set out and separately stated herein. Conclusion of Law No. 13 is modified to read: Respondent's permits should be suspended for a period of 80 days or, in lieu of a suspension, Respondent should pay a civil penalty of $24, The modification to Conclusion of Law No. 13 is made to conform the conclusion of law to the Administrative Law Judge's recommendation set forth in Order No. 4 but not presented therein as a modification of Conclusion of Law No. 13. 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 12:01 a.m. on December 14, 2016 and shall remain suspended for EIGHTY (80) DAYS, UNLESS a civil penalty in the amount of $24, is paid ON OR BEFORE December 6, This Order will become final and enforceable on the 22nd day of November, 2016, unless a Motion for Rehearing is filed by the 21st day of November, SIGNED this the 27th day of October, 2016, at Austin, Texas. Page 2 of4

3 Sheffy K-Cook, Executive Director Texas Alcoholic Beverage Commission CERTIFICATE OF SERVICE I certify that the persons listed below were served with a copy ofthis Order in the manner indicated below on this the 27th day of October, Ana Anchondo ADMINISTRATIVE LAW JUDGE State Office ofadministrative Hearings I 0300 Heritage Boulevard, Suite 250 San Antonio> Tx VIA FACS/1~1/LE: (512) Baines Bradshaw and Smith, LLC d/b/a Bottom Bracket Social Club RESPONDENT 1603 N. Colorado Street San Antonio, TX 7820 I VIA FIRST CLASS MAIL, Cil'!RRR # Jay Morwitz ATTORNEY FOR RESPONDENT 2600 S.W. Military Drive, Suite 118 San Antonio, TX VIA FIRST CLASS MAIL, Cil1RRR# Martin Wilson, Assistant General Counsel Texas Alcoholic Beverage Commission Page 3 of4

4 David Duncan ATTORNEY FOR PETITIONER TABC Legal Division VIA Page 4 of 4

5 TEXAS ALCOHOLIC BEVERAGE COMMISSION CIVIL PENALTY REMITTANCE DOCKET NUMBERS: , , , REGISTER NUMBER: NAME: Baines, Bradshaw and Smith, LLC TRADENAME: Bottom Bracket Social Club ADDRESS: 1603 N. Colorado Street, San Antonio, Texas DUE DATE: December 6, 2016 PERMITS OR LICENSES: MB857145, LB AMOUNT OF PENALTY: $24, 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.0.BoxNo. City State Zip Code Area Code/Telephone No. Page 1 of 2

6 SOAR DOCKET NO g (TABC CASE NOS , , , ) > TEXAS ALCOHOLIC BEVERAGE COMMISSION, Petitioner v. BAINES BRADSHAW AND SMITH LLC, D/B/A BOTTOM BRACKET SOCIAL CLUB PERMIT NO. MB857145, LB BEXAR COUNTY, TEXAS Respondent BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS C ~ 1 C C ~ C ' C C 0 ' PROPOSAL FOR DECISION The Staff (Staff) of the Texas Alcoholic Beverage Commission (T ABC or Commission) alleges that Baines Bradshaw and Smith, LLC, d/b/a Bottom Bracket Social Club (Respondent) has violated the Texas Alcoholic Beverage Code (Code). Due to various violations, Staff seeks to cancel or suspend Respondent's permit for a period of 60 days. After considering the arguments and evidence presented by the parties, the Administrative Judge (ALJ) finds that there is sufficient evidence to suspend Respondent's permit for a period of 79 days or, in lieu of permit suspension, that Respondent be ordered to pay a civil penalty in the amount of$23,700. I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY Notice, jurisdiction and venue were not contested in this proceeding and are therefore set out in the proposed findings of fact and conclusions oflaw without further discussion here. On February 24, 2016, a hearing convened at the State Office of Administrative Hearings in San Antonio, Texas, before ALI Ana Anchondo. Staff was represented by David Duncan Jr. Respondent was present and was represented by Jay Morwitz. The hearing was closed on the same date; however a telephone conference was conducted to discuss Respondent's Exhibit A on February 29, The DVD that was provided to the ALI on the date of the hearing was not

7 SOAH DOCKET NO PROPOSAL FOR DEClSION PAGE2 the same DVD shown at the hearing. Respondent was directed to provide a new copy of Exhibit A to both the AU and to Staff. The correct exhibit was received by the AU and Staff. II. RESPONDENT'S STATUS WITH TABC Respondent holds a Mixed Beverage Pennit and a Mixed Beverage Late Hours Pennit issued by the Commission for the premises know as Bottom Bracket Social Club, located at 1603 N. Colorado Street, San Antonio, Bexar County, Texas. Staff alleges that Respondent has committed the following violations: TABC Case No. Violation Date Violation Description Breach of the peace ] 5-14 Refusal to allow commission or peace officer to enter and inspect licensed premises Respondent/agent/servant/employee intoxicated on licensed premises Permitting consumption of alcoholic beverage at a time when prohibited Sold/served/delivered alcoholic beverage at time when prohibited Sold/offered to sell mixed beverages during prohibited hours Sold/offered to sell/deliver beer during prohibited hours Permitting consumption of alcoholic beverage at a time when prohibited Permitting minor possession of alcoholic beverages Permitting minor consumption ofalcoholic beverages l Sold/served/delivered alcoholic beverage to intoxicated person

8 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE3 III. EVIDENCE Staff offered three exhibits, all of which were admitted without objection and called nine witnesses. 1 Respondent offered two exhibits, which were admitted without objection and called three witnesses. 2 Witnesses who testified on behalf of the Respondent focused their testimony mainly in regard to violations that occmted on August 15, A. AUGUST 15, 2014-TABC Starrs Evidence TABC cited Respondent with three violations on August 15, The following witnesses testified on behalf of Staff: Detective John Wesley Moore, Detective Carlos Reyes and T ABC Agent Michael Cantrell. On that date, Detective Moore, Detective Reyes, Detective Jerry Tone and Detective Faulkner arrived at Respondent's location to investigate a complaint made by a patrol officer regarding the Respondent's premises. 4 Detective Moore and Detective Reyes testified that they announced themselves to the doorman and informed him that they were going to conduct an inspection. Detective Reyes testified that he and Detective Tone went to the back patio area ofthe premises. Detective Reyes stated that the back patio area was crowded and that it was difficult to maneuver around the crowd. Detective Reyes recalled seeing one 1 Exhibit 1 is the Notice of Hearing; Exhibit 2 is Respondent's permit and Violation History; and Exhibit 3 is five pages of photographs of the exterior of Respondent's premises. 2 Exhibit A included a DVD clip of Detective Reyes hitting a suspect and Exhibit B is a DVD audio clip of Respondent's witness Julius Lee yeiling for the crowd to get back and identifying the police during the altercation. 3 I. Tex. Alco. Bev. Code (b){2) and 28.11; 2. Tex. Alco. Bev. Code 1 l.61 (b)(2} and ; 3.. Tex. Alco. Bev. Code (b)(2} and (13). 4 Detectives Moore and Reyes testified that they were approached by patro1man Charles Marcus while they were at a convenience store getting drinks. Officer Marcus informed them that he arrested a "highly" intoxicated woman who stated she had been at Respondent's premises prior to her arrest. Officer Marcus told the Detectives that he went to the location and observed the premises were overcrowded and loud, believing the noise level was over the legal limit. Detective Tone met with Detectives Moore, Reyes and Faulkner at the location with a meter reader to determine if the noise level was over the legal limit. Detective Moore and Reyes testified that the noise level exceeded the noise level allowed for the area, however, neither witness was able to state what the reading level was that night.

9 SOAH DOCKET NO PROPOSAL l'or DECISION PAGE4 employee in the back patio area, who was the "security guy." Detective Reyes stated he began to request identification of individuals to verify their ages. He approached one customer, who refused to provide the Detective with identification. After several requests to obtain this person's identification, Detective Reyes stated the customer pushed and struck Detective Reyes as he was trying to grab the customer. Detective Reyes stated that he and Detective Tone grabbed the customer and put him on the ground. A friend of the customer began to yell, "Police brutality!" which excited the crowd, causing them to move in on the officers. Detective Reyes stated that people tried to separate them from the customer and that Detective Reyes was kicked and hit several times and put in a choke hold. Detective Reyes stated that he observed the customer walk away. Detective Tone pulled out his weapon and directed the crowd to back away. Detective Reyes pursued the customer and tried to grab him, at which point a second fight started. Detective Reyes stated that he was grabbed by the arm and punched several times by a customer who did not want him to take his "friend." Detective Reyes stated that Detective Tone got involved and tjied to separate him from the person hitting him. Detective Reyes stated that when he broke free, he observed Detective Moore walking out of the building. He observed the man that had just punched him walk towards Detective Moore and raise his arm up as though to strike Detective Moore. Detective Reyes stated that he observed Detective Moore on the ground bleeding from his nose and mouth. Detective Reyes stated that he informed Detective Faulkner that Detective Moore was hurt and, when he exited the building, he observed the individuals that he was fighting against walk away. A third fight began as Detectives Moore and Tone grabbed the men. Detective Reyes was taken to the hospital as a result of the injuries he sustained that night. Detective Moore testified that while he was inside the premises he observed an employee who he believed to be the bouncer, motion to another employee behind the bar. It appeared to Detective Moore that something was going on outside. Detective Moore decided to follow the employees outside to see what was happening. Upon doing so, he observed what he explained as "employees dealing with a drunk,'' and saw them dragging a person by the arms towards the building. Detective Moore stated that it appeared as though the person had been in a fight. Detective Moore testified that this was his last recollection of that night. He testified that his next memory was waking up at the hospital with serious injuries, as a result of being beaten at

10 SOAH DOCKET NO PROPOSAL FOR DECISION PAGES Respondent's premises. 5 T ABC Agel1t Michael Cantrell arrived to the premises after the fighting had occurred. Agent Cantrell observed Detective Moore on the stretcher being taken to the ambulance. Agent Cantrell stated that his main objective was to assist officers in obtaining further information and to aid in identifying the bar owners. Agent Cantrell stated that although he arrived after the disturbance, he observed a large crowd was still at Respondent's location. Agent Cantrell testified that there was a lack of supervision in the patio area and that there were very few employees to control the situation. Agent Cantrell testified that Mr. Smith ( one of the bar owners), told him that a customer by the name of Mr. Kazart 6 was drunk and that he and his doorman tried to get the man out of the premises. 7 Agent Cantrell stated that Respondent's improper supervision led to Mr. Kazart, an intoxicated person, to be allowed back on the licensed premises. Agent Cantrell believed Kazart was the "key" individual responsible for what occurred on the premises that night. Agent Cantrell testified that Respondent refused to allow him and another officer to inspect the video surveillance equipment located on the premises. Agent Cantrell stated that Detective Faulkner stated he was denied access to inspect the surveillance video equipment and was told by Mr. Bradshaw (one of the bar owners) "I know my rights; I'm not letting you look at the video.'' Agent Cantrell testified that he was told by Mr. Bradshaw that he did not have access to the equipment and that there was no monitor available to view the video. Agent Cantrell observed the video equipment was unplugged. Agent Cantrell testified that "premises" included all buildings, vehicles and appurtenances pertaining to the grounds and any adjacent premises that are directly or indirectly under the control of the same person. 8 Agent Cantrell testified that the premises would include surveillance video equipment which was subject to inspection because it might include evidence of the breach. Agent Cantrell stated that the video equipment 5 Detective Moore testified that he suffered from a broken nose, broken jaw, chest injuries, and memory loss as a result of being beaten!bat night. 6 This is a phonetic spelling of this person's name. Witnesses did not provide a spelling for this person's name during the hearing. 7 This infonnation was provided to Agent Cantrell during an interview with Mr. Smith on a separate date. 8 Tex. Alco. Bev. Code (a).

11 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE6 was later seized pursuant to a warrant and that the equipment was functional and contained infomrntion pertinent to their investigation. Staff offered no evidence regarding Respondent's agent, servant or employee being intmdcated on the licensed premises Respondent's Evidence The following witnesses testified on behalf of Respondent: Julius Lee, Harley J. Smith III, and Tito Harry Bradshaw. Respondent's Exbibits A and B, which were both DVD video clips, were shown during the hearing. On August 15, 2014, Mr. Lee, who is head of security for Respondent, testified that only three other people were working that night and were inside the premises. Mr. Lee stated he was outside when the fighting began. He stated that the officers did not announce their presence when they entered the premises and that they were wearing "street clothes" without any badges displayed. Mr. Lee stated that he heard a commotion and saw people "scuffling" on the ground. He stated he observed one of the officers draw his weapon and identify himself as an officer. Mr. Lee stated that this was when he was made aware that the police were present. Mr. Lee stated he told the crowd to allow the officers to "do their job" and to..get off'' of the officers. Mr. Lee stated that when the fight was over, he observed officers being aggressive. Mr. Lee testified that he did not believe there was anything that could have prevented what happened that night. He felt that the situation could have been "caught" quicker or assessed better if there was another security person with him, but the situation itself would still have occurred. Mr_ Lee also believed that the situation would not have escalated had the officers identified themselves to the crowd and to Mr. Kazati. Mr. Lee testified that there was an intoxicated person trying to leave the premises on his bike but was falling down. Mr. Lee stated he decided to keep the person on the premises until his ride picked him up. Mr. Smith, one of the bar owners, stated that he was aware of the intoxicated customer and that Mr. Lee picked him up and brought him in the bar. He was 9Tex. Alco. Bev. Code (b)(2) and (13).

12 SOAH DOCKET NO PROPOSAL FOR DE.ClSION PAGE7 unaware the customer was still on the premises, but at some point discovered the customer was in the back asleep. Mr, Smith testified that he was aware that the officers were present on his premises. He stated that he saw them with their badges out. Mr. Smith was inside the premises and was not aware of the fighting that was occurring outside of his bar until a customer told him that there was a "riot" outside. Mr. Smith stated he went outside and observed Detective Reyes and another officer with Mr. Kazart on the ground. Mr. Bradshaw, one of the bar owners, testified that he was first contacted by Detective Faulkner. He stated that he was asked by Detective Faulkner to see the cameras, and he responded that he did not have a monitor to view the video. He further testified that he was approached by another officer regarding the cameras and Mr. Bradshaw told the officer that the video slll"veillance equipment was his personal property and belonged to him and that the officer needed a warrant. Mr. Bradshaw testified that another officer came into the bar and took the equipment. Mr. Bradshaw stated that 2 days later an officer came with a wan-ant for the property that was already confiscated. Mr. Bradshaw and Mr. Smith both testified that since this incident, they have remeducated their bartenders and staff. They have added more employees, bouncers and have added new surveillance equipment. B. NOVEMBER 15, 2014-TABC t. Stafrs Evidence TABC cited Respondent with four violations on this date. 10 The following witnesses testified on behalf of Staff: TABC Agent Yuri Patricia Alvarez and T ABC Agent Donald 10 I. Tex. Alco. Bev. Code (b)(2) and (22), and ; 2. Tex. Alco. Bev. Code (b)(2), and ; 3. Tex. Alco. Bev. Code (b)(2) and ; 4. Tex. Alco. Bev. Code (b)(2) and

13 SOAH DOCKET NO PROPOSAL FOR DECISION PAGES Brooks On November 15, 2014, Agents Alvarez and Brooks went to Respondent's premises in an undercover capacity. Their main objective was to observe the crowd, bartenders and employees for any violations. They were accompanied by Agent Zavala. Agent Alvarez testified that the bar was crowded and that she observed individuals drinking and ordering drinks after 2:00 a.m. She stated that Agent Zavala ordered a beer and mixed drinks for them at about 2: IO a.m_ Both Agents Alvarez and Brooks stated that they observed the bartender serve fireball whiskey shots to a group of people at about 2: 18 to 2:20 a.m. Agent Brooks stated that they consumed their own alcoholic beverages within view of Respondent's employees after hours. Both officers testified that Respondent possesses an extended hours mixed beverage permit. 11 Both agents testified that a permit holder with an extended hours beverage pennit must stop serving alcohol at 2:00 a.m. and that all patrons need to stop consuming alcoholic beverages by 2:15 a.m. The Agents infonned the open team what they had observed and at that point, the open team came in and identified the bartenders who sold alcoholic beverages that night and the people who were consuming alcoholic beverages. 2. Respondent's Evidence Mr. Bradshaw testified that they were trying to create an environment where "people hang out." He stated that they did not enforce the 2: 15 a.m. stop time and that they were unaware that going past the designated hours made much difference. Respondent did not offer any additional evidence. C. JANUARY 16, 2015-TABC Starrs Evidence 11 Tex. Alco. Bev. Code and

14 SOAH DOCKET NO PROPOSAL fi'or DECISION PAGE9 T ABC cited Respondent with three violations on this date. 12 The following witnesses testified on behalf of Staff: Detective Moore, Agent Cantrell, Sgt. Kenneth Parker Davis and Detective Robert D. Moffit. The officers entered Respondent's premises for a "prohibited hours" investigation at approximately 2:30 a.rn. Detective Moore observed a man standing by the DJ booth consuming an alcoholic beverage that was identified as Jack and Coke. Detective Moore identified the man, and discovered that he was a minor and employee ofrespondent. The minor admitted to consuming the alcoholic beverage to Detective Moore. Detective Moore could not recall the name of the minor but stated that he was a DJ for Respondent. Detective Cantrell stated that he was made aware of the minor; however, he did not handle this incident. Detective Cantrell stated that he observed people sitting at the bar and drinking. One person at the bar was identified as Jesse Elizondo. Mr. Elizondo was observed consuming a beer. Both Detective Moffit and Sgt. Davis observed people sitting at the bar and consuming alcoholic beverages when prohibited. Staff did not provide any evidence regarding Respondent selling to a minor in violation of Tex. Alco. Bev. Code Respondent's Evidence Mr. Smith testified that he was unaware that the DJ was a minor. He stated that the minor was a recent employee. Mr. Smith stated that he did not sell alcohol to the employee. Respondent did not offer any additional evidence. D. OCTOBER 10, 2015-TABC Staff's Evidence 12 l. Tex. Alco. Bev. Code 11.6 l (b)(2) and (22) and ; 2. Tex. Alco. Bev. Code (b)(2), and ; 3. Tex. Alco. Bev. Code (b)(2), , and

15 SOAH DOCKET NO PROPOSAL l'or DECISION PAGE 10 TABC cited Respondent with one violation on this date. 13 The following witnesses testified on behalf of Staff: TABC Agent Alvarez and Agent Nina Gonzales. At approximately 2:00 a.m., Agent Alvarez was undercover with another agent at Respondent's premises. Agent Alvarez testified that she observed a man who she recognized by the name of TI. She stated she observed TI stumbling and swaying as he walked and he appeared "inebriated." She observed TI pull out money and count it, and observed him almost fall back when he dropped something on the floor. She stated that a concrete beam broke his fall and as he stood back up, he leaned against the bar and ordered a beer. Agent Alvarez observed the employee grab a beer from a cooler and give it to TJ. Agent Gonzales was the lead investigator on October 10, She testified that she made contact with TJ and the bartender who sold the beer to TJ. Agent Gonzales stated that TI had a "glazed over" appearance and that he did not appear to be aware of what was going on. Agent Gonzales stated that based on her training and experience she believed TI to be "very drunk." 2. Respondent's Evidence Respondent did not offer any evidence. IV. ANALYSIS AND RECOMMENDATION Staff established by a preponderance of the credible evidence that a breach of the peace occurred on Respondent's premises and that the breach was not beyond the control of Respondent or Respondent's agent, servant or employee and resulted from Respondent's improper supervision of persons permitted to be on the licensed premises or on the premises under Respondent's control pursuant to Texas Alcoholic Beverage Code l l.61 (b)(2) and The testimony by the officers established that an intoxicated person was on Respondent's licensed premises. Further, this person was permitted to be on the premises by Respondent's employee, Mr. Lee. Mr. Smith testified that he was aware of this intoxicated customer and that 13 Tex. Alco. Bev. Code (b)(14).

16 SOAH DOCKET NO PROPOSAL!<OR DECISION PAGE 11 he knew Mr. Lee brought him back into the premises. Because there was a lack ofsupervision of this person who was permitted to be on the premises by Respondent, the intoxicated customer walked back into the patio area ofthe premises amongst the crowd unbeknownst to Respondent or Respondent's employees. This intoxicated customer was identified by both the officers and Respondent as being involved in the breach of the peace that occurred the night of August 15, The testimony established that the back patio area was overcrowded and that Respondent did not have enough employees to handle the crowd or the situation that became violent that night. There were three fights during the night in question, and neither Respondent nor Respondent's employees were able to stop or control what happened that night. The testimony established that Respondent only had one person, Mr. Lee, in the back patio area. Due to the nature ofthe crowd, one employee was not sufficient. The evidence provided by Staff further established that Respondent refused to allow the agents or peace officers to inspect the premises in accordance with Texas Alcoholic Beverage Code Here, the refusal centers on Respondent's refusal to allow the inspection and review of the surveillance video equipment located on Respondent's premises. The definition of "premises" at Texas Alcoholic Beverage Code (a), is; the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control ofthe same person. The surveillance video equipment and video are a part of the "appurtenances" pertaining to the premises. "Appurtenance" is defined as: "an object that is used with or for something" or "property (as an outbuilding or fixture)". 14 The testimony of Agent Cantrell established that the video surveillance equipment was part of Respondent's premises and was therefore subject to inspection. Mr. Bradshaw's testimony revealed that he did not give consent to the inspection of this equipment. Rather, he testified that the property was his personal property and that a warrant was needed to obtain it. Agent Cantrell testified he was not allowed to inspect the equipment. 14 Appurtenance definition, Merriam-Webster.com, (last visited January 19, 2016).

17 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 12 Staff did not prove by the preponderance of the evidence that Mr. Smith was intoxicated while on the premises. 15 In addition to Staff presenting credible evidence for violations occurring on August 15, 2014, Staff further proved by the preponderance of the credible evidence that Respondent violated Texas Alcoholic Beverage Code 1I.61 (b)(2), (14), (22), , I 05.06, I 05.05, , and , for the violations that occurred on November 15, 2014, January 16, 2015, and October 10, Respondent did not refute these violations. Because there were various violations that occurred on four separate dates and because of the severity of the breach that occmted on August 2014, Respondent's permit should be suspended for a period of 79 days or, in lieu of the suspension, a fine of $23,700 should be assessed. V. FINDINGS OF FACT l. Baines Bradshaw and Smith d/b/a Bottom Bracket Social Club (Respondent) holds a mixed beverage pennit and a mixed beverage late hours permit (MB857145, LB) for the premises located at 1603 N. Colorado Street, San Antonio, Bexar County, Texas On August 15, 2014, law enforcement arrived to Respondent's premises, announced their presence and conducted an inspection. 3. A breach of the peace occuited on Respondent's premises which resulted in two police officer's being taken to the hospital for their injuries. 4. Respondent's premises was crowded and there were not enough employees to provide adequate control or supervision of the area. 5. Respondent allowed an intoxicated person by the name of Mr. Kazart to remain on the premises. That person was one of the individuals who participated in the breach of the peace that resulted in the officer's injuries. 15 Tex. Alco. Bev. Code l l.61 (b)(2) and (13). 16 Excluding Tex. Alco. Bev. Code

18 SOAH DOCKET NO PROPOSAL!'OR DECISION PAGE Respondent refused to allow T ABC and/or peace officers to inspect Respondent's video surveillance equipment as part of their investigation. 7. Respondent believed that the surveillance video equipment was his personal property and requested that peace officers obtain a warrant. 8. On November 15, 2014, undercover TABC agents entered Respondent's premises to observe the crowd, bartenders and employees. TABC Agent Zavala ordered beer and mixed drinks at approximately 2: IO a.m. Agents were sitting in an area within view of Respondent's employees as they were consuming their alcoholic beverages during prohibited hours. 9. TABC agents observed Respondent's employee serve fireball whiskey shots, an alcoholic beverage, to a group ofpeople between 2: 18 to 2:20 a.m. I 0. Respondent has a mixed beverage late hours permit that allows the serving of alcohol until 2:00 a.m. Alcohol consumption must stop by 2: 15 a.m. 11. On January 16, 2015, at approximately 2:30 a.m., peace officers entered Respondent's premises for an undercover "prohibited hours" investigation. 12. Detective John Wesley Moore observed a minor consume an alcoholic beverage, identified as Jack and Coke, on Respondent's premises. 13. The minor was Respondent's employee. 14. Peace officers observed several people sitting at the bar consuming alcoholic beverages. 15. Agent Michael Cantrell observed a customer by the name of Jesse Elizondo consume a beer. 16. On October I 0, 20 I 5, undercover TABC Agents entered Respondent's premises at approximately 2:00 a.m. 17. Agent Yuri Alvarez observed a man by the name of TJ stumbling and swaying as he walked, appearing to be "inebriated". 18. Agent Yuri Alvarez observed TJ purchase a beer from Respondent's employee. 19. On January 25, 2016, Staff of the Texas Alcoholic Beverage Commission (TABC or Commission) issued a notice of hearing, alleging various violations of the Texas Alcoholic Beverage Code (Code). 20. The notice stated the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; the statutes and rules involved, and

19 SOAH DOCKET NO PROPOSAL FOR DECISION PAGE 14 the matters asserted. 21. The hearing on the merits was convened on February 24, 2016, at Heritage Road, Suite 250, San Antonio, Texas at the State Office of Administrative Hearings Field Office. Staff Attorney David T. Duncan represented Staff and Jay Morwitz represented Respondent. VI. CONCLUSIONS OF LAW 1. The Commission has jurisdiction over this matter pursuant to Texas Alcoholic Beverage Code (Code) chapter 5 and The State Office of Administrative Hearings has jurisdiction over all matters related to conducting a heating in this proceeding, including preparation of a proposal for decision with findings of fact and conclusions of law, pursuant to Code 5.43 and Texas Government Code chapter Respondent received notice of hearing pursuant to Texas Government Code T ABC Staff had the burden of proof by a preponderance of the evidence. 1 Tex. Admin. Code Staff met its burden by proving that a breach of the peace occurred on Respondent's licensed premises and that the breach of the peace was not beyond the control of Respondent and resulted from his improper supervision of persons permitted to be on the licensed premises or on the premises under the Respondent's control on August 15, Code (b)(2) and Staff met its burden by proving that Respondent refused to allow an authorized representative of the Commission or peace officer to enter the licensed premises on August 15, 2014, to conduct an investigation and inspect the premises for the purpose of performing a duty imposed by the Code (b)(2) and Staff met its burden by proving that Respondent, or Respondent's agent, servant or employee permitted consumption of an alcoholic beverage on the licensed premises at a time when the consumption of alcoholic beverages was prohibited on November 15, 2014 and January 16, Code I l.61(b)(2), (22) and Staff met its burden by proving that Respondent, Respondent's agent, servant or employee, sold, served or delivered an alcoholic beverage at a time when the sale of alcoholic beverages is prohibited, to include the sale of mixed beverages and beer during prohibited hours, on November 15, Code (b)(2), (23), ,

20 SOAR DOCKET NO PROPOSAL FOR DECISION PAGE15 9. Staff met its burden by proving that Respondent or Respondent's agent, servant, or employee with criminal negligence petmitted a minor to possess an alcoholic beverage on the licensed premises on January 16, Code I l.61(b)(2), and I0. Staff met its burden by proving that Respondent or Respondent's agent, servant or employee sold, served, or delivered an alcoholic beverage to an intoxicated person on October 10, 2015 in violation of Code I 1.61 (b)(l4). 11. Staff did not meet its burden to prove that Respondent or Respondent's agent, servant or employee was intoxicated on the licensed premises in violation of Code 11.6 l (b)(2) and (13). 12. Staff did not meet its burden to prove Respondent sold alcohol to a minor in violation of Code Respondent's permits should be suspended for a period of 79 days or, in lieu of a suspension, Respondent shall pay a civil penalty of $23,700. SIGNED April 21, f}6_f2&: ANA ANCHONDO ADMINISTRATIVE LAW JUDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS

21 State Office of Administrative Hearings Cathleen Parsley Chief Administrative Law Judge April 21, 2016 Sherry Cook Administrator Texas Alcoholic Beverage Commission Post Office Box Austin, Texas BY FIRST CLASS MAIT., Re: SOAH Docket No (TABC Cases No , , , ), T ABC " Baines Bradshaw and Smith LLC, d/b/a Bottom Bracket Social Club Greetings Ms. Cook: Enclosed is a Proposal for Decision in this case. Tt contains my recommendation and undetlying rationale. Any party may file exceptions amj Teplies in accordance with J Tex. Admin. Code I S5.507(c), a SOAR rule which may be found at Yours truly, ij~ ANA ANCHONDO ADMIN1S1'RATIVE LAW.flJDGE STATE OFFICE OF ADMINISTRATIVE HEARINGS DBD/dbd Enclosure xc: Emily Helm, General Counsel, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin, Texas BY FIRST CLASS MAIL xc: David T. Duncan, Jr., Legal Services Attorney, Texas Alcoholic Beverage Commission, 5806 Mesa Drive, Austin. Texas BY FIRST CLASS MAIL xc: Jay Morwit2, Attorney-at-Law, 2600 S.W. Military Drive, Suite 118, San Antonio, Texas BY FIRST CLASS MAIL Heritage Boulevard, Suite250, San Antonio, Texas (Main) (Fax)