NO. 10-90-094-CV
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
101 CLUB, INC.,
Appellant
v.
TEXAS ALCOHOLIC BEVERAGE COMMISSION
ET AL,
Appellees
* * * * * * * * * * * * *
From 40th Judicial District Court
Ellis County, Texas
Trial Court # 46,077
* * * * * * * * * * * * *
O P I N I O N
* * * * * * *
This appeal is from an order of the 40th District Court of Ellis County in favor of the Texas Alcoholic Beverage Commission (TABC) denying 101 Club, Inc. ("the club") an original private club registration permit and a beverage cartage permit. The club alleges the court erred in granting judgment for the TABC because the agency's decision denying the permits was not supported by substantial evidence. The trial court's judgment will be affirmed.
The club is located in a "dry area" of Ellis County near Waxahachie. Frank Gamba, the club's president, intends to open a family-oriented Spanish and Italian restaurant in conjunction with the private club. He indicated to the TABC that he will open the restaurant whether or not the permits allowing him to serve alcohol on the premises are granted. Several concerned citizens living in the immediate area filed protests to the issuance of the permits asserting that the location of the club was not appropraite for the serving of alcohol.
Following a hearing before the TABC, the hearing examiner entered her proposal for decision in favor of the club. However, after reviewing the record, the assistant administrator for the TABC rejected the examiner's proposal and denied the issuance of the permits, finding that the proposed location of the club was not suitable for the serving of alcoholic beverages -- ". . . that the place in and of itself merits the denial of a permit." The district court affirmed the agency's decision after reviewing the record of the agency proceedings and found that the administrative decision was supported by substantial evidence.
The issue facing both the district court and this court is not whether the TABC officer's ruling was correct, but whether it was reasonable; that is, whether the agency acted arbitrarily and without regard to the facts. See Texas Alcoholic Beverage Com'n v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990); Helms v. Texas Alcoholic Beverage Com'n, 700 S.W.2d 607, 610 (Tex. App.--Corpus Christi 1985, no writ). In making this determination, we are not authorized to substitute our judgment or discretion for that of the TABC administrative officer. Id. The administrative ruling must be reviewed under the substantial evidence test. See Tex. Alco. Bev. Code Ann. §§ 61.34, 11.67(b) (Vernon 1978, Supp. 1991). The test is "whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action." See Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). The administrative ruling must be sustained if its action is reasonably supported by substantial evidence presented to the trial court. See Helms, 700 S.W.2d at 610. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency reached, then the order must be set aside; otherwise, it must be upheld. See Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198, 202-203 (Tex. 1949).
The club is located at 101 Becky Lane, where Becky Lane intersects State Highway 77, just outside the Waxahachie city limits. The northern city limits of Waxahachie end with Becky Lane. The club's parking lot entrance would open directly onto Highway 77, a heavily-traveled, two-lane highway which branches off Interstate 35 approximately six miles north of the club. Traffic exiting I-35 to enter the downtown business district of Waxahachie must pass through the intersection of Becky Lane and Highway 77.
Although Highway 77 in this area is generally commercial in nature, residences are located along Becky Lane south of the club as well as 150 feet east. Becky Lane and Tracy Lane, the first street north of Becky Lane, are generally residential, with numerous small children living in the area. School buses run regularly in the neighborhood. The Mexia State School, which serves the mentally retarded, operates a training facility or "opportunity workshop" adjacent to the club on Highway 77. It is possible that a school will be built on the fifty-acre tract to the south of the club across Highway 77 in three to five years, depending upon the growth pattern in the area. The Waxahachie Independent School District presently owns this acreage, and the deed restricts the use of the land to that of a school site. A Baptist church is located approximately three blocks from the location in question, and a private psychiatric hospital with a drug abuse and alcohol rehabilitation center, offering both in-patient and out-patient treatment, is located on Highway 77 directly across from the church.
The county judge and sheriff of Ellis County testified at the administrative hearing. Judge Redington related that forty or forty-five people had contacted her to express their concern that the traffic in the area was already extremely congested and that the location itself was simply not appropriate for serving alcohol. She further indicated that she did not believe the proposed location of the club was appropriate for serving alcohol to the public and that much better places could be found. Sheriff Gage had been surprised to learn of the private club application. He estimated that he had been contacted by approximately ninety citizens. He opposed the granting of the permit and pointed out the tremendous law enforcement problems posed by the club at that particular location because it falls within the county jurisdiction rather than within the jurisdiction of Waxahachie. Gage explained that his thirty deputies were having difficulty covering the 1,000 square miles in the county under the present circumstances and that the serving of alcohol to the public in that location would add to the problem. Gage described the traffic congestion already existing in the area, especially just north of the location in question where Highway 77 intersects State Highway 342, resulting in what he believed to be the most dangerous intersection in the county.
Having considered the totality of the evidence, we hold that the decision of the TABC to deny the club's application for a private club permit in a "dry area" was reasonably supported by substantial evidence. The TABC did not abuse its discretion in giving "due consideration" to the recommendations of the county judge and sheriff of Ellis County. See Tex. Alco. Bev. Code Ann. §11.41 (Vernon 1978). Moreover, the proximity of the proposed licensed premises to a hospital, school, church, residential areas with many children, and the potentially hazardous traffic conditions, further justifies the denial of the alcoholic beverage permit. See Sierra, 784 S.W.2d at 360-61; Jones, 224 S.W.2d at 203; Helms, 700 S.W.2d at 611-12.
Based upon the testimony of the seven witnesses who testified against the application, the TABC had reasonable grounds to believe that "the place or manner in which the applicant may conduct his business warrants the refusal of a permit based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency." See Tex. Alco. Bev. Code Ann. §11.46 (Vernon Supp. 1991). Given the evidence as a whole, reasonable minds could have reached the conclusion that the TABC reached in order to justify its action. The judgment is affirmed.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed April 25, 1991
Do not publish
er section 22.04(k)(1)(B), and despite the apparent language to the contrary, the legislature did not intend to discourage persons licensed in the healing arts (such as nurses and physician assistants) from providing emergency medical care when not under the direction of a licensed physician.