The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Texas Alcoholic Beverage Commission v. Baines Bradshaw & Smith LLC, 2017 WL 6554588 (Tex. Off. Admin. Hgs. Dec. 12), the Commission was seeking to block the renewal of the Bottom Bracket Social Club's liquor license, on the grounds that "the place or manner in which Bottom Bracket would operate the premises would be against the general welfare, health, peace, morals, and safety of the community, and the public sense of decency."
Part of the Commission's argument was that Bottom Bracket had illegally sold alcohol during a previous suspension; the Administrative Law Judge agreed that this happened, but concluded that under the circumstances this called only for an extra 20-day suspension. ("[T]he ALJ finds credible Mr. Bradshaw's testimony that he and the other co-owners misinterpreted the suspension order and did not intend to violate it. This is also supported by Agent Cantrell's testimony that every other time during the suspension that he checked on Bottom Bracket, it was closed.") There were also various alleged problems at the bar in the past, but the ALJ concluded that the earlier suspension had already adequately punished the bar owners, and that "There is no evidence of other problems with Bottom Bracket since the suspension period, which suggests that the owners of Bottom Bracket learned lessons from their suspension."
But the ALJ also noted another element of the Commission's argument:
In his … testimony, Detective Moffett emphasized that one of the other members of the vice unit observed that one of Bottom Bracket's owners wrote "fuck the police" and "fuck the TABC" on a Facebook post not long after the August 2014 incident. According to Detective Moffett, those remarks show what kind of people Bottom Bracket's owners really are and that they should not be allowed to operate a bar.
Detective Moffett added that he told Mr. Bradshaw after the August 2014 incident that he was not going to tolerate any more adversarial actions or comments. He testified that he informed Mr. Bradshaw that instead of issuing a verbal warning or writing a citation, he would take Mr. Bradshaw into custody for any violations found at Bottom Bracket. At hearing, he provided the example that he arrested Mr. Bradshaw because he found a locked exit door at the bar. According to Detective Moffett, Mr. Bradshaw did not react appropriately to his arrest, but instead tried to point out his arrest to customers and stated it would not hurt his business. Yet Detective Moffett also testified that Mr. Bradshaw did not resist arrest.
The ALJ concluded that he "does not view statements that express negative views of SAPD or TABC, even profane statements, to be the basis for denying a permit. Nor does the ALJ view objecting to (but not resisting) custodial arrest for a violation that would otherwise have been the basis for a citation as the kind of behavior that 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." And he added:
[The State Office of Administrative Hearings] has no jurisdiction to address constitutional claims, and Bottom Bracket has not made one. That said, the ALJ is concerned about the request to deny a permit based on speech that criticizes police. See, e.g., City of Houston v. Hill (1987) ("the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers"); United States v. Poocha (9th Cir. 2001) (yelling "fuck you" or "that's fucked" at police officers during an arrest constituted protected speech).
A well-founded concern, it seems to me.