                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00393-CV


FORT WORTH PR’S, INC.                                          APPELLANT

                                     V.

TEXAS ALCOHOLIC BEVERAGE                                         APPELLEE
COMMISSION


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         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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     In a single issue, Appellant Fort Worth PR’s, Inc. challenges the trial

court’s judgment affirming the order of Appellee Texas Alcoholic Beverage

Commission (TABC) adopting the Proposal for Decision of the State Office of

Administrative Hearings judge that Fort Worth PR’s violated Texas Alcoholic

Beverage Code section 106.13 by knowingly serving a minor an alcoholic

beverage on April 12, 2009. See Tex. Alco. Bev. Code Ann. § 106.13 (West


     1
      See Tex. R. App. P. 47.4.
2007). Fort Worth PR’s does not dispute the fact that a sale of an alcoholic

beverage to a minor occurred at Fort Worth PR’s on April 12, 2009, but argues

that the affirmative ―safe harbor‖ defense set forth in Texas Alcoholic Beverage

Code section 106.14 applies.     See id. § 106.14 (West 2007).       This defense

provides that the actions of an employee in serving an alcoholic beverage to a

minor are not attributable to the employer (like Fort Worth PR’s) if (1) the

employer requires its employees to attend a commission-approved seller training

program; (2) the employee has actually attended such a training program; and

(3) the employer has not directly or indirectly encouraged the employee to violate

such law. Id.

      Conflicting evidence was introduced at the hearing before the State Office

of Administrative    Hearings judge on       whether   Christina Kallmeyer—the

server/seller employed by Fort Worth PR’s whose sale of an alcoholic beverage

to a minor formed the basis of the TABC’s disciplinary action at issue––had

actually attended a commission-approved seller training program.2 A copy of the

card or certificate that Kallmeyer would have received upon completion of a

commission-approved seller/server training program was not offered or admitted

into evidence at the hearing before the judge at the State Office of Administrative

Hearings. Based on the conflicting evidence, the State Office of Administrative

Hearings judge issued finding of fact number 11 that ―[n]o evidence was

      2
        Mr. Gilmore, the general manager at Fort Worth PR’s, testified that all
personnel associated with serving alcoholic beverages at Fort Worth PR’s had
received seller/server training and certification. One of the officers for TABC who
participated in the sting operation at Fort Worth PR’s that led to the disciplinary
action at issue testified that per TABC’s computer records Kallmeyer was not
seller/server certified. Neither Kallmeyer nor any other Fort Worth PR’s
employee beside Mr. Gilmore testified.


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produce[d] to confirm that either of Respondent’s [Fort Worth PR’s] bartenders

that were on duty on April 12, 2009, had attended a TABC-sanctioned

seller/server training course.‖ The State Office of Administrative Hearings judge

issued a Proposal for Decision finding that the violations had occurred and

recommending that Fort Worth PR’s permits be suspended for thirty days or that

a fine of $9,000 be paid in lieu of any suspension. The TABC issued an order

adopting the Proposal for Decision and Fort Worth PR’s sought judicial review in

a Tarrant County district court. After the district court signed a final judgment

affirming the TABC’s order, Fort Worth PR’s perfected this appeal.

      We review a TABC order under the substantial evidence test.               Id.

§ 11.67(b); Tex. Alcoholic Beverage Comm’n v. Sierra, 784 S.W.2d 359, 360

(Tex. 1990). Substantial evidence need only be more than a scintilla. Garza v.

Tex. Alcoholic Beverage Comm’n, 138 S.W.3d 609, 613 (Tex. App.––Houston

[14th Dist.] 2004, no pet.). Whether substantial evidence exists in support of an

administrative decision is a question of law. Tex. Dep’t of Pub. Safety v. Alford,

209 S.W.3d 101, 103 (Tex. 2006). In determining whether substantial evidence

exists, the reviewing court may not invade the factfinding authority of the agency.

State Banking Bd. v. Allied Bank Marble Falls, 748 S.W.2d 447, 448–49 (Tex.

1988).

      Here, in light of the conflicting evidence on the second element of the safe

harbor defense––whether the employee has actually attended such a training

program––and the absence in the record of a card or certificate that either of Fort

Worth PR’s bartenders on duty on April 12, 2009 would have received upon

completion of a commission-approved seller training program, we cannot say that

substantial evidence does not exist supporting the TABC order, including finding


                                        3
of fact number 11 that that ―no evidence was produce[d] to confirm‖ that Fort

Worth PR’s bartenders on duty on April 12, 2009 had attended a TABC-

sanctioned seller/server training course. See, e.g., 20801, Inc. v. Parker, 249

S.W.3d 392, 394 (Tex. 2008) (recognizing employer bears burden of proof on

first two elements of section 106.14’s safe harbor defense); Tex. Dep’t of Pub.

Safety v. Sanchez, 82 S.W.3d 506, 511 (Tex. App.––San Antonio 2002, no pet.)

(recognizing it is incumbent on the administrative law judge to determine the

credibility of witness testimony).

      We therefore overrule Fort Worth PR’s sole issue.3 We affirm the trial

court’s judgment.



                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: June 23, 2011




      3
        Fort Worth PR’s contends that it was not required to plead the affirmative
safe harbor defense in the administrative hearing in order to raise it in the judicial
review it sought before the trial court. We need not, and do not, decide that issue
here; assuming the safe harbor defense was properly raised, we nonetheless for
the reasons set forth herein determine that the TABC order, including the finding
of fact that that ―no evidence was produce[d] to confirm‖ that Fort Worth PR’s
bartenders on duty on April 12, 2009 had attended a TABC-sanctioned
seller/server training course, is supported by substantial evidence.


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