By: Malcolm Mayhew
By: FW Mag Staff
With raids ending in violence and what some say are unconstitutional tactics, has the Texas Alcoholic Beverage Commission gone too far?
by Jennifer Casseday-Blair
The Alcoholic Beverage Code is straightforward: “This code is an exercise of the police power of the state for the protection of the welfare, health, peace, temperance and safety of the people of the state. It shall be liberally construed to accomplish this purpose.” While the TABC is charged with enforcing this code, interpretation of “liberally construed” could easily lead to problems.
Drinking Days Again What used to be known as the Texas Liquor Control Board, the Texas Alcoholic Beverage Commission (TABC) was created in 1935 after the repeal of prohibition. While the original duties of this organization were to promote temperance, protect the public interest, encourage observance of the Liquor Control Act, collect alcoholic beverage taxes and discourage socially undesirable activities such as bootlegging, underage drinking and organized crime, the agency’s duties have expanded considerably.
The legislature renamed the Liquor Control Board the Texas Alcoholic Beverage Commission in 1970. Soon after, the legislature allowed voters to decide in local elections if mixed beverages could be sold in restaurants and bars in their area. Because of this, the TABC also monitors the distribution of alcoholic beverages to make sure there are no illegal business relationships between manufacturers, wholesalers and retailers. In addition, it regulates and controls the flow of alcoholic beverages from manufacturers to consumers.
In nearly 80 years, the TABC has seen many administrators. Several did not last long before resigning from the commission.
In 1975 one official was fired because of accusations that he had taken bribes from a Houston liquor store.
Luke Robinson served as the commission’s chief from 1975 until his resignation in June of 1976. His tough approach placed several business establishments’ alcohol permits in jeopardy.
Following Robinson was former sheriff and ex-Marine Corps Sgt. W.S. “Sherman” McBeath, who served as administrator until 1991. It was during this time that the agency faced allegations of selective enforcement against minorities and sexual discrimination against female employees.
Alan R. Steen came on in 2003 and resigned in June of this year to take the position of executive director of the National Cutting Horse Association. During his time with the TABC, he was credited with shifting focus from individual behavior to licensed premises and regulatory aspects that lead to a safer community, as well as promoting economic development.
Questionable Tactics TABC agents have statewide jurisdiction and are fully empowered police officers who can make arrests.
A few years ago, vacationers had to think twice before having a few cocktails at the hotel bar before heading up to their room.
TABC agents launched a program called Operation Last Call, where the supposed intent was to reduce drunk driving by nabbing inebriated patrons before they got to the parking lot.
The operation, which included both undercover and overt surveillance, came after the addition of 59 new agents, thanks to the Texas Legislature. With more agents, the TABC was able to crack down even harder by busting into bars just before closing time and arresting patrons who appeared to be intoxicated.
In Irving, nearly 30 people were arrested during a sweep including many at a hotel bar. The suspects said they were registered at the hotel and had no intention of driving. The arresting agents said that the patrons posed a danger to themselves and others.
TABC Capt. David Alexander released a statement shortly after the incident saying: “Going to a bar is not an opportunity to go get drunk. It’s to have a good time but not to get drunk.” Officials also said that they were more concerned with saving lives than individual rights. Operation Last Call was suspended in 2006.
In early 2001, the TABC began a program in the DFW area where the plan was to have drunk agents go into bars and see if bartenders would sell them more alcohol in violation of state law. Because Texas bartenders can’t be prosecuted for selling to a fake drunk, the TABC wanted to give them the real thing. So they broke one state law (state employees consuming alcohol and getting drunk while working) to investigate whether other laws were being broken.
The undercover sting operations that sent minors into bars and retail stores to identify whether or not they will sell to minors hit a major bump in 2009. TABC agent Joe Chavez Jr. was arrested and charged with two counts of sexual assault and one count of official oppression. He was accused of raping a girl after one of the sting operations in Bastrop County near Austin. Chavez pleaded guilty and was sentenced to 20 years in prison.
After a two-month suspension of the program, the TABC began using juveniles again but with new policies and training procedures. Now juveniles involved in such operations must be transported home by at least two employees, and the agency now requires more detailed planning and reporting, as well as increased supervision.
On college campuses, the TABC spends much of its efforts arresting underage drinkers. TCU alum Cliff Hargis recalls an incident where a TABC agent visited a small get-together he was having at his private residence.
“There was roughly a mixed crowd of 10-12 men and women, all of age, who were quietly socializing and enjoying some adult beverages.” Hargis said the TABC agent identified himself and baited one of the guests who was of age to come down and talk to him on the sidewalk. The guest said he was 21 and asked why he needed to come down and speak with the agent.
“The TABC agent was vague and continued to coerce my guest to step off the patio so that they could talk. Assuming that there was not an issue, our guest showed the TABC agent the courtesy of stepping off the private property line onto the sidewalk to defuse any uncertainty of his age and whether or not he was in his legal right to consume alcohol,” Hargis says. Once the guest joined the TABC agent to talk (off private property), the agent advised our guest that he had strong reason to believe that he was publicly intoxicated on public property and he would now be issuing him a citation.
“The guy was of legal drinking age and wasn’t breaking any laws,” Hargis says. “While I understand the functionality of the TABC task force, I think their time could be better spent elsewhere rather than trolling neighborhoods coaxing individuals off private property in order to hand out public intox citations.”
The guest ran from the agent, and the other partygoers were threatened in order to get the boy’s name. The agent told the boy that he would get his class schedule and come arrest him during class. For fear of being arrested in front of friends, he hired a lawyer and paid hefty fines and was forced to apologize. The student was also subjected to three months of drug testing and several hours of community service.
Public Opinion There are approximately 250 TABC agents for all of Texas, which forces them to rely on local law enforcement, bartenders and storeowners to uphold laws. Seemingly, bartenders and store and business owners are held more liable than the offender.
If someone serves a minor, he or she faces a Class A Misdemeanor with a fine up to, but not exceeding, $4,000 and/or one year in jail. The minor could potentially face a Third Degree Felony if he or she is caught with a fake ID. That has a penalty of a $10,000 fine and two to 10 years in jail.
According to the TABC Web site, it collects in excess of $200 million annually in taxes and fees.
Businesses that serve a minor will receive an administrative penalty that could include a fine, suspension or cancellation of their permit to sell alcohol.
Maj. Charlie Cloud with TABC said that the agency works closely with all local law enforcement. “If there is a problem bar or location in the city limits of Fort Worth that is giving the local people grief, we will proceed with the process of taking away their license if we can’t get them into compliance,” Cloud says.
Controlling a substance such as alcohol is extremely difficult for bartenders, especially during a busy weekend. A bartender can serve hundreds of people in one night. Guests are ordering and walking away with drinks, and the bartender doesn’t know who will ultimately be drinking those beverages in a crowded bar. The TABC regulations require that bartenders become a cross between detective and babysitter. They not only must ID every guest who orders a drink, but also determine if the person they are serving is inebriated.
Of the many bar/restaurant owners contacted about their experiences with the TABC, none of them were willing to go on the record for fear of retaliation.
The TABC monitors breweries as well. Until last year, the TABC prohibited Texas breweries from telling customers where they could find their beer in stores or bars because it supposedly helped deter alcohol consumption. Many speculate that the code was left in place for so long because of pressure from the big beer lobbyists who wanted to preserve the profitable upper hand over smaller craft breweries. Austin brewery Jester King received a favorable ruling last year from Judge Sam Sparks who found the code unconstitutional.
Also as a result of this ruling, the TABC can no longer prohibit breweries from labeling their product “strong” or “full strength” or require that breweries label their product as beer or ale based on alcohol percentages.
Fritz Rahr, founder of Rahr & Sons Brewing Company in Fort Worth, thinks the changes are a good thing. “Now we are allowed to tell people where they can buy our product, which is a great deal. With these changes that just recently happened, it’s going to be awhile before you start to see the effects of it,” he says.
Rahr says he has not had any issues with the TABC. “In our case, the TABC has been extremely helpful from the get-go. When we opened up the brewery, we went to the TABC and asked a lot of questions. We brought them into our process and included them in what we were doing and how we were going about doing it. They’ve got a job to do, and that’s what they do. Whenever we have a question, it’s nice to have an outlet to get an answer.”
TABC still prohibits craft brewers from selling beer to customers on-site, even though wineries are allowed to do this. So there is still a ways to go for craft breweries and their quest in overturning unconstitutional TABC policies.
Rainbow Lounge Raid At 1 a.m. on Sun., June 28, 2009, Fort Worth police officers and TABC agents entered the Rainbow Lounge, a gay bar near downtown. More than 20 people were taken outside, and six were arrested on suspicion of public intoxication.Before the raid at the Rainbow Lounge, nine people had already been arrested from nearby bars. Rainbow Lounge manager Randy Norman said that the officers were “riled up” from wherever they were before the raid. They immediately began arresting people instead of starting with routine checks, Norman recalled.Excessive force was used after agents said some of the patrons made sexual advances and contact with them. One of those patrons was Chad Gibson. During the raid, he was slammed to the concrete floor by TABC agents, which caused a brain injury. He was hospitalized and has recovered.Gibson chose not to comment about the events that evening. He said, “I usually don’t like to talk about it.” Gibson received a $400,000 settlement from the Fort Worth City Council for the way he was treated during the raid. The city says the settlement “... should not be construed as an admission of liability ...” and that it is strictly “to avoid time-consuming and costly litigation.”Another patron from that evening, George Armstrong, suffered a torn rotator cuff and also received a settlement.
Fort Worth police and the Texas Alcoholic Beverage Commission faced harsh criticism for how they handled that evening. TABC fired two agents, Jason Chapman and Christopher Aller, and three police officers were briefly suspended.
According to witnesses, the TABC agents were also not appropriately attired. They were wearing T-shirts reading “state police,” which does not exist.
After the dust had settled, the city attorney’s office said that it would prosecute Gibson on public intoxication and assault charges for allegedly groping the ex-TABC agent. Since then, all charges have been dropped.
Rep. Lon Burnam and Sen. Wendy Davis called for an independent agency to review the investigatory findings of the TABC and Fort Worth Police Department. The FWPD suspended all operations with the TABC temporarily. A news release said that Chief of Police Jeff Halstead would meet with TABC officials “to establish clearly defined roles and responsibilities of each organization with the intent to better serve the community in conducting inspections.”
“Within the first three weeks of the Rainbow Lounge incident, I directed staff to immediately start drafting a change to our old policy,” Halstead says. “A committee was put together of legal representatives, patrol officers, neighborhood police officers, community leaders and bar owners because I wanted a quick revision. The goal was more supervisory input, and I wanted a tiered policy,” Halstead says. “Going back in time, it looks like the Rainbow Lounge escalated in seconds when it really should have merely been a meet-and-greet, and then we simply walked out.”
North Texas filmmaker Robert Camina made a documentary about the series of events that evening called Raid on the Rainbow Lounge. It premiered in Sundance Square to a sold-out crowd earlier this year. Halstead was invited to attend the premier, and in a gutsy move, he appeared to show his support of the community. “I appreciated Robert Camina painting the entire picture about how much progress [the Fort Worth Police Department] has made. I was asked to come up and answer a few questions from the crowd, which was an honor for me. When I walked up, they gave me a standing ovation, which was an emotional point for me,” Halstead says.
Sobriety and Sensibility In an attempt to balance public safety and public service, the TABC is developing apps to curb excessive and underage drinking. One of the apps will allow users to test their motor skills through a series of tests. The other app allows anyone to file a complaint against an establishment if he or she believes alcohol is being served to a minor or serving too much alcohol to its customers. In any case, Fort Worth alcohol rehab centers or any such facility within the state of Texas can take in minors who drink excessively and help treat them.
Nobody will argue that promoting responsible alcohol consumption for the public safety of our community is a worthwhile mission. Decreasing the number of those who get behind the wheel after one too many is immeasurably important.Regulations involving how far away alcohol must be sold in distance from a church or what time one can buy a beer on Sunday are reminiscent of the prohibition era. These things do not promote sobriety, but they do burden businesses and those wishing to purchase alcohol.
Individual rights should carry a high priority, and in the eyes of many, some of the tactics that the TABC uses to write its citations step over the line and trample those rights. Local bars, restaurants, retail stores and their employees feel the strong arm of the TABC, and TABC protection or monitoring can feel a lot more like harassment. It’s about time the TABC streamlined their agency by modernizing their regulations and ensuring all agents understand the regulations in the same capacity. Times have changed since 1935, and the TABC needs to catch up.
By: Malcolm Mayhew
By: FW Mag Staff