Important Information for Potential Dram Shop Plaintiffs About On The Border Mexican Grill
As the head of the firm that's sued more bars and restaurants for negligent service of alcohol than anyone else in Texas, I've become painfully aware of just how widespread over-service is across our state. But if you don't take on providers for a living on a regular basis, you probably aren't aware of just how serious a problem this is for both the intoxicated patrons of these establishments and other drivers who may encounter them on the road. To help raise the public's consciousness of the issue, I sometimes look through the Texas Alcoholic Beverage Commission's complaint records and publish my findings. If you believe you may have a Dram Shop case, I encourage you to contact me at (855) 326-0000.
On the Border Mexican Grill & Cantina is a well-known Tex-Mex restaurant chain with over 160 locations all around the country (and a few internationally). Founded in Dallas in 1982, it has changed hands between large investment conglomerates since 2009. It continues to grow and has become a well-known name among hungry fajita lovers. Currently owned by Argonne Capital Group, a multi-million dollar private equity firm, the restaurant continues to grow as it experiments with its menu to attract increasingly fickle diners.
Like most chain restaurants, a not-insignificant portion of On the Border's profits come from alcohol sales. For instance, On the Border makes much of its wide selection of flavored margaritas. Like any high-volume business that sells plenty of alcohol, occasionally the restaurant chain runs into trouble by selling it to people who shouldn't have it. While it's not necessarily done on purpose, pouring drinks for minors or people who are already intoxicated is still against the law, and can subject businesses who engage in it to both TABC penalties and civil liability if someone is hurt or injured.
When Texas locations of On the Border disobey those rules, accidentally or intentionally, they answer to the Texas Alcoholic Beverage Commission (TABC). Over the years locations across the Lone Star State have run afoul of this agency and had their practices investigated. In fact, over the last two years the agency has been called to investigate On the Border fourteen times.
Note: Investigations are not guarantees of guilt. Just because a complaint was filed does not mean that On the Border actually violated alcohol-service laws. However, even if sufficient evidence of a violation is not found, that doesn't necessarily mean the bar is innocent--only that the allegation couldn't be proven. In order to make any claims stick, investigators have to find irrefutable evidence that there was a violation of Texas dram shop law. Due to the nature of the offenses, that proof can be difficult to find. All we're doing here is relaying publicly-available information about incidents where the TABC has investigated On the Border for possible criminal or administrative violations.
TABC Investigations of On the Border Since 2016
Arlington - 1121 IH 20 West
Allegations
3/21/2017: A law enforcement agency informed the TABC that this location of On the Border allegedly sold or served alcohol to a person under the age of 21.
The TABC investigated the information provided by the Arlington PD. According to the complaint log, agents were unable to find sufficient evidence that the violation occurred to hold On the Border accountable.
Even though the initial complaint came from law enforcement rather than a civilian, the TABC would have had to prove the incident occurred. The restaurant enjoys the same protections--"innocent unless proven guilty"--that any individual would when accused of a transgression. Since it was unable to prove that On the Border had served alcohol to a minor, the TABC closed the complaint without further action on 4/22/2017.
Corpus Christi - 5117 S Padre Island Drive
Allegations
3/23/2017: A citizen informed the TABC that this location allegedly sold or served alcohol to someone under the legal drinking age. The complaint also alleges that the restaurant permitted a minor to possess or consume alcohol on the premises.
As mentioned elsewhere, the two claims are similar but legally distinct. One is a violation by action, the other one by omission. Regardless, TABC investigators checked out both allegations, but didn't find sufficient evidence that either took place. The complaint was closed without further action on 5/06/2017.
12/13/2017: A concerned patron informed the TABC that On the Border potentially violated several portions of the Alcoholic Beverage Codes. The complaint report notes three initial allegations:
- Selling/serving alcohol to a minor,
- Possession of distilled spirits without a mandatory ID stamp, and
- Failing to invalidate the ID stamps of empty bottles.
We've discussed the first allegation at length, but the other two are serious issues in their own way. The TABC has a great deal to say about where alcohol must come from and how it must be tracked before it's ultimately poured into Sidecars and Appletinis for a thirsty public. The allegation that On the Border got some of its booze from an unregulated source that didn't attach the required tax stamp, coupled with the claim that the restaurant didn't appropriately destroy the stamps of its used-up bottles, could have landed this location in some pretty serious hot water if they had ultimately been confirmed.
As it happens, TABC investigators looked into the charges initially made by the citizen and didn't find sufficient evidence to confirm any of them. The claim was closed without further action on 2/11/2018.
Longview - 200 Loop 281 West
Allegations
6/25/2018: A concerned citizen reached out to the TABC to allege that this restaurant sold or served alcohol to one or more people under the legal drinking age. Furthermore, the complaint alleges that the restaurant permitted a minor to possess or consume alcohol on the premises.
Those two allegations may appear to be redundant when filed at the same time, but they are actually different. In one situation, the restaurant would have directly given alcohol, through sale or service, to someone legally unable to have it, signifying an active violation of the Texas Alcoholic Beverage Code. In the other situation, the restaurant allegedly failed to take action when a minor drank alcohol they were not directly sold or given by a restaurant employee. This is still a violation of the TABC code, but due to inaction--distinct from the first situation.
TABC officers looked into the information provided by the citizen, but were apparently unable to find sufficient evidence that either violation occurred. After roughly two months (fairly standard for a TABC investigation), the file was closed on 8/23/2018 with no action taken to penalize this On the Border.
Fort Worth - 13005 S Freeway
Allegations
2/27/2017: According to a report made to the TABC by a local citizen, this location allegedly sold or served alcohol to an already-intoxicated person.
The open TABC investigation lasted just over a month, in which time officers apparently were unable to confirm that the alleged over-service took place. During that period, they also did not observe any other offenses for which they felt the need to penalize this On the Border. The complaint was closed without any further action on 3/31/2017.
7/17/2018: The TABC was once again alerted by a source marked as "Other" on the complaint report that this On the Border location allegedly sold or served alcohol to an already-intoxicated person.
TABC investigators looked into the claim for about a month, but officers do not seem to have found enough evidence that any over-service occurred. The complaint was closed without any further action on 8/25/2018.
Plano - 5000 Hwy 121
Allegations
10/16/2017: A citizen complained to the TABC that this location allegedly sold or served alcohol to a minor.
The TABC opened a file, but closed it just three days later on 10/19/2017. It's not specific about the reason the investigation lasted so short a time, but one could guess that either the original complainant retracted the information they provided or investigators quickly found evidence that invalidated the claim. Neither of those scenarios can be definitively proven, however.
Tyler - 4301 S Broadway Ave
Allegations
2/23/2017: Shortly after Valentine's Day, a Tyler citizen alleged to the TABC that this On the Border location sold or delivered alcohol to a minor. The same complaint alleged that On the Border sold alcohol to a person who was already intoxicated.
Officers looked into the allegations made by the citizen, but do not appear to have found sufficient evidence to confirm either violation occurred. Interestingly, during the course of their investigation they seem to have found evidence that an unreported breach of the peace occurred on the premises near the beginning of February.
According to the Texas Alcoholic Beverage Code, alcohol vendors are obligated to report most breaches of the peace to the TABC for further investigation. How much time they have to make that report depends on the severity of the incident, but in most cases the deadline is within 15 days of the incident itself. By failing to report the breach on Feb. 1--whatever its specifics may have been--On the Border failed to honor its legal obligation, thereby committing an administrative violation.
The TABC issued this On the Border location a written warning for its failure to report the breach and closed the complaint without further action on 4/11/2017.
7/17/2017: A patron of this location reached out to the TABC to complain that one or more employees (called "Licensees/Permittees" in official TABC terms) were intoxicated during the course of business.
Intoxicated employees fall under the purview of the Texas Alcoholic Beverage Code §104.01, which governs "LEWD, IMMORAL, INDECENT CONDUCT." The section is full of predictable prohibitions: no obscene language or actions, sexual solicitations, drug use, or "rudely displaying" a weapon, among others. Also included is a line item forbidding representatives of the business from being intoxicated on the licensed premises.
If proven, such an allegation can carry with it a stiff administrative penalty of several thousand dollars and/or a possible liquor license suspension. However, TABC officers were unable to find enough evidence to confirm the allegations in this instance, and the complaint was closed without further action on 9/02/2017.
7/27/2018: A source marked on the complaint form as "Other" notified the TABC that this location allegedly sold or delivered alcohol to a minor, as well as allegedly selling alcohol to a person who was already intoxicated.
TABC officers investigated the allegations but were unable to confirm that either violation occurred. The complaint was closed without further action on 9/15/2018.
Waco - 4320 W Waco Drive
Allegations
1/26/2016: The TABC was informed by a law enforcement agency that On the Border was the site of a breach of the peace. The complaint also notes that the restaurant failed to report that breach of the peace in the required interval after it occurred.
TABC officers looked into the allegations and appear to have confirmed both the breach and the restaurant's subsequent failure to report it. The breach itself appears to have occurred on January 16, and likely was pretty serious if On the Border was penalized for not reporting it within ten days. Lesser breaches generally have a 15-day window in which to alert the TABC of the incident; when someone's safety is threatened by a deadly weapon or someone suffers serious bodily injury, the report window shrinks to 72 hours.
The TABC took action against On the Border both for being the site of the unspecified breach and for failing to report it. The restaurant's license was suspended and it appears it was also issued a "Civil Penalty," most likely a hefty fine. The complaint was closed after those actions were taken, on 1/29/2016.
8/08/2017: A citizen reached out to the TABC to complain that staff at On the Border were refilling liquor bottles, a practice specifically forbidden by the Alcoholic Beverage Code.
The law currently states that an establishment may not "recycle" an empty liquor bottle for any reason. No matter how ostensibly noble the intent (using a fancy bottle as a water decanter, for example), the bottle must be discarded and its tax stamp destroyed. When a bar or restaurant refills any liquor bottle, they break the law.
TABC officers looked into the refilling allegations but do not appear to have found any evidence of the practice--either of that specific instance or of any repeat offenses while the location was investigated. The complaint was closed without any further action on 10/03/2017.
Wichita Falls - 3111 Midwestern Parkway #242
Allegations
11/28/2016: A concerned citizen contacted the TABC to complain that On the Border allegedly sold and/or served alcohol to a minor. Furthermore, the same complaint alleges that the restaurant sold or served alcohol to an intoxicated person.
However the affected minors may feel about it, both they and the restaurants they can't drink at are bound by the laws that govern them. The law prohibits people under 21 from drinking, with very few exceptions*. Dram shop laws correct the behavior of establishments that try to circumvent those rules.
Another issue addressed by dram shop law is over-service of an intoxicated person. Getting a person extremely drunk just because they have to money to do so is a direct violation of TABC code. The prohibition against doing so exists because eventually those intoxicated people have to leave, and far too often they try to do so by driving. A high percentage of DUI accidents occur because establishments did not act as they were obligated to, pouring far too many drinks for people who clearly didn't need any more.
TABC officers investigated the citizen's initial claims. They do not appear to have found sufficient evidence that On the Border over-served any patrons, nor did they witness any other incidents of the same during the course of their inquiry. However, officers do seem to have confirmed that the restaurant served alcohol to an underage party. The TABC apparently agreed not to take any punitive action against this location, suggesting it may have successfully argued a Safe Harbor exemption. The complaint was closed without punitive action on 2/07/2017.
*In Texas a minor can drink alcohol with the consent and supervision of a parent or guardian.
4/04/2017: According to information given to the TABC by a law enforcement agency, the same location in Wichita Falls faced similar allegations as their prior report: service of alcohol to a minor and over-serving an intoxicated person.
Representatives of the agency once again looked into the allegations, but this time were unable to find evidence that the restaurant had committed either violation. They also did not see any similar incidents occur in the course of their two-month inquiry. The complaint was closed without further action on 6/03/2017.
Texas Law Allows Victims of Over-service to Sue Negligent Restaurants
If you would like to learn more about Texas Dram Shop/liquor liability law, we encourage you to examine our comprehensive guide to the subject.
