Texas Alcoholic Beverage Com'n v. Big Country Club, 4605

• Decision Date: 09 March 1973
• Docket Number: No. 4605,4605
• Citation: 492 S.W.2d 368
• Parties: TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. BIG COUNTRY CLUB, Appellee.
• Court: Texas Court of Appeals

Page 368

492 S.W.2d 368

TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. BIG COUNTRY CLUB, Appellee.

No. 4605.

Court of Civil Appeals of Texas Eastland.

March 9, 1973.

Rehearing Denied April 6, 1973.

E. Bruce Curry, Asst. Atty. Gen., Austin, for appellant.

Schulz, Hanna & Burke, W. L. Burke, Jr., Abilene, for appellee.

McCLOUD, Justice.

This is an appeal from a judgment of the district court setting aside an order of the Administrator of the Texas Alcoholic Beverage Commission cancelling appellee's private club registration permit and beverage cartage permit. The only issue presented is whether the order of the Administrator is reasonably supported by substantial evidence. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949); Texas Liquor Control Board v. Longwill, 392 S.W.2d 725 (Tex.Civ.App.--Texarkana 1965, writ dism.); Texas Liquor Control Board v. Armstrong, 300 S.W.2d 146 (Tex.Civ.App.--San Antonio 1957, writ ref'd.); Texas Liquor Control Board v. Pennington, 423 S.W.2d 469 (Tex.Civ.App.--Houston 1967, writ ref. n.r.e.).

The rules to be applied are well settled. The evidence to be considered is the evidence admitted in the judicial proceeding. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Sikes v. Texas Liquor Control Board, 243 S.W.2d 395 (Tex.Civ .App.--Galveston 1951, no writ hist.). The issue to be decided is a question of law. Texas Liquor Control Board v. Scott, 347 S.W.2d 841 (Tex.Civ.App.--Waco 1961, writ ref. n.r.e.); Texas Liquor Control Board v. Spivey, 354 S.W.2d 424 (Tex.Civ.App.--Dallas 1962, no writ hist.). All evidence is to be reviewed and not merely that which supports the order of the Administrator. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946). The burden of proof is upon the appellee, Big Country Club, to show that the order of the Administrator is not reasonably supported by substantial evidence. Preponderance of the evidence is not the test. Southern Canal Co. v . State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958). Also, the reviewing court may not substitute its judgment for that of the Administrator. Trapp v. Shell Oil Co., supra; Ramos v. Austin, 220 S.W.2d 528 (Tex.Civ.App.--San Antonio 1949, no writ hist.). The test to be applied is announced in Trapp v. Shell Oil Co., supra, 198 S.W.2d at page 441 as follows:

"If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside."

On or about March 12, 1972, Alton Boyd Carter was involved in an affray with Lee Shelton and Bob Bailey at the Big Country Club. Shelton was the owner and manager of the Big Country Club, and Bailey was Shelton's son-in-law. After a hearing, the Administrator entered an order cancelling the cartage and private Club permits. Contained in the order is the following finding:

'3.

That the manner in which the permittee conducts its business is of such a nature which, based on the general welfare, health, peace, morals and safety of the people and on the public sense of decency, warrants the cancellation or suspension of the permits, in that on or about the 12th day of March, 1972, there did occur on the said licensed premises a breach of peace to-wit: an affray involving Alton Boyd Carter, Lee Shelton and Bob Bailey, which was not beyond the control of the agents and employees of the said permittee and was the result of improper supervision.'

Article 666--12, Vernon's Ann.Texas Penal Code provides:

'The Commission or Administrator may cancel or may suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any permit or any renewal of such permit if it is found that any of the following is true:

(6) That the place or manner in which the permittee conducts his business is of such a nature which, based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency, warrants the cancellation or suspension of the permit.'

The record shows that shortly after arriving at the Big Country Club Alton Boyd Carter ordered and was served a beer. Upon ordering a second beer he was refused service. Lee Shelton, the owner and manager of the club testified Carter was refused the beer because he had been previously 'barred' from the club. Carter, after the refusal, left his table and went to the bar. At this point a fight occurred between Carter, Shelton, and Bailey. During this fight Shelton struck Carter several times with a broken or sawed-off cue stick. As a result of the fight, Carter sustained multiple lacerations and abrasions about the head which required medical treatment.

There is evidence that after Carter was told he could not have a second beer he rushed to the bar, slammed his fist down, and while using vile language, demanded he...