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Interested in Filing A Dram Shop Lawsuit Against Lush Rooftop Nightclub? There Are A Few Things You Should Know

My firm has filed Dram Shop claims against more negligent alcohol providers than anyone else in Texas. From dingy bars to major restaurant chains, I've discovered that almost any place that serves alcohol can potentially over-serve it. But it doesn't appear that everyone has the same level of awareness about the extent of this problem, and I think that's unfortunate. To help bridge the knowledge gap, I sometimes take a look through the TABC's complaint database and publish my findings here. If you believe you have a potential dram shop case, please call my office at (855) 326-0000.

Lush Rooftop is a popular San Antonio night- and dance club for nightlife fans ages 18 and up. The venue boasts that it has "an exquisite indoor and outdoor space for a more refreshing clubbing experience," featuring bars, table/bottle service, available hookahs, and frequent DJ performances. Earnings reports suggest this "party all night" approach turns a decent profit, as the bar posts earnings approaching a million dollars a year.

Unfortunately, all that drunken partying often means occasionally running afoul of the law in one way or another. Lush Rooftop had a number of run-ins with the TABC, running all the way up to mid-2018. In the span of under two years, officers of the agency were called to the club nine times for allegations of misconduct.

Note: Investigations are not guarantees of guilt. Just because a complaint was filed does not mean that Lush Rooftop actually violated the law with irresponsible alcohol service. However, even if sufficient evidence of a violation is not found, that doesn't necessarily mean the bar is innocent--only that the misdeed couldn't be proven. In order to make any allegations 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 Lush Rooftop for possible criminal or administrative violations.

TABC Investigations of Lush Rooftop


Lush operates just one location. All the bar's promotional materials refer to the bar by the name "Lush Rooftop," but TABC lists its investigations under the name "Lush Ultra Lounge."

San Antonio - 4553 Loop 1604 Northwest Suite 1201

Allegations

8/03/2018: According to the TABC complaint record, a law enforcement agency contacted them to note that a breach of the peace took place at this location.

TABC officers investigated the allegations from San Antonio police, and in the process discovered that Lush was said to have served alcohol to a minor in the course of their business.

Serving alcohol to a minor is a Class A misdemeanor, usually punished by a fine. The TABC complaint report doesn't list any specific punishment dealt to Lush for its service violation, nor does it confirm that the breach of the peace was a sort that would have required Lush to report it to the agency.

In short, while the criminal misdemeanor is documented on the complaint form, it doesn't appear any disposition was taken against the bar in this instance. The complaint was closed on 9/12/2018.


7/03/2018: A San Antonio citizen reached out to the TABC to report that Lush allegedly sold or served alcohol to a minor (or several), as well as continuing to serve alcohol to an intoxicated person (or several).

The agency sent investigators to look into the citizen's allegations. In the 2-month course of their work, those officers confirmed that minors were in possession of and/or were consuming alcohol on the premises. Despite this discovery, the TABC did not reflect in their complaint report that they took any action against the bar for its criminal violation.

The complaint was closed on 9/08/2018 without any noted disposition.


5/02/2018: The TABC was informed by a citizen that Lush allegedly permitted a minor to consume alcohol on the premises (without specifically accusing the bar of selling alcohol to the minor), continued to serve liquor after sanctioned hours of operation, and practiced "refilling," or re-using empty liquor bottles--a practice prohibited by the Texas Alcohol Beverage Code.

TABC officers investigated the citizen's complaints. It appears from the report that investigators were unable to find enough evidence to confirm any of the allegations, and the complaint was closed without disposition on 6/19/2018.


12/06/2017: A bar patron contacted the TABC to alert them of possible violations. According to the complaint report, Lush allegedly sold or served alcohol to a minor as well as permitting the possession and/or use of drugs on the bar's premises.

The TABC looked into the allegations and apparently discovered that a breach of the peace had occurred during the period of their investigation. The agency took dispositive action in the form of a written warning about the bar's failure to report the breach. It does not appear the TABC found enough evidence to corroborate either of the citizen's initial complaints about serving a minor and possible drug use on site. The complaint was closed with no action taken on either of those allegations on 1/26/2018.


4/28/2017: A citizen complained to the TABC that Lush allegedly substituted one brand of alcohol for another when serving drinks.

It is somewhat surprising that more complaints of this nature don't surface, since it's technically a violation of the law if a bar uses liquor other than that specified by a customer. TABC § 28.081 says it like this:

The holder of a mixed beverage permit or a private club permit, or the agent, servant or employee of a holder of a mixed beverage permit or private club permit commits an offense if the holder, agent, servant, or employee substitutes one brand of alcoholic beverage for a brand that has been specifically requested by a consumer, unless the consumer is notified and consents to the substitution.

This comes up occasionally when a bar patron wants upper-shelf liquor and the bar tries to substitute something cheaper for the same price. We can't be certain that's what happened in this instance--the complaint doesn't tell the exact circumstances--but that's one of the more common reasons this section of the TABC is invoked.

TABC officers conducted a Marketing Practices investigation about the complaint, but wasn't able to find evidence of substitutions taking place. As a result, they were unable to take any civil or criminal action against Lush. The complaint was closed without further steps on 5/15/2017.


1/31/2017: A San Antonio citizen contacted the TABC to alert them of possible violations. According to the complaint report, Lush allegedly sold or served alcohol to a minor. In addition, the complaint alleges the bar sold or served alcohol to an intoxicated person.

The agency investigated the claims but was unable to find evidence that the bar had engaged in such practices. The complaint was therefore closed on 2/19/2017 without any criminal or administrative disposition taken against the bar.


11/01/2016: A resident of San Antonio contacted the TABC to claim that Lush allegedly sold or served alcohol to a minor.

There seems to be a pattern in these complaints--one of serving alcohol to minors. As an 18-and-up club, it falls to Lush to be strictly vigilant about who is able to order drinks at the bar. It's admittedly an extra risk when running a bar that also caters to people below the legal drinking age, but given that they take it on voluntarily, "it's hard to keep track of minors" is not a sufficient plea in instances where a bar is caught breaking the law.

In this instance, however, the bar was not caught committing any violations. TABC officers investigated the claims but were unable to find evidence that the bar had served alcohol to minors. The complaint was closed on 12/17/2016 with no disposition taken against the bar.


5/27/2016: The TABC was contacted by a source marked only as "Other" to alert them of possible violations. In this instance the complaint focused on Lush allegedly refilling empty bottles of spirits.

Bars are expressly forbidden by the Texas Alcoholic Beverage Code from refilling empty bottles of spirits for any re-use. Not only can they not put more alcohol into the empties; the code forbids them from recycling bottles as water decanters or using them as containers for homemade mixture ingredients like cordials or syrups. In a way, it's admirable for a bar to want to cut down on waste by reusing bottles, but in so doing, they break the law.

The TABC investigated the refilling claims but seems not to have found sufficient evidence of the practice to take any action against Lush related to that complaint. However, while investigating the allegation, TABC agents did identify errant marketing practices conducted by Lush; the complaint form notes the bar was issued two written warnings for "Failure to Post Required Sign" and "Misc. Violations." The complaint was closed on 6/03/2016.


5/13/2016: A patron contacted the TABC to file a complaint of possible violations conducted by Lush. The civilian alleged that the bar had served alcohol to an intoxicated person, as well as serving or selling alcohol to a minor.

The agency looked into the claims of service violations, but was unable to find enough evidence of either allegation to take any action against Lush. The complaint was closed without disposition on 6/18/2016.


Texas Law Allows Victims of Over-service to Sue Bad Bars

If you are interested in finding out more about Texas Dram Shop / liquor liability law, we encourage you to take a look at our extensive page on the subject.