The bar where Councilman Clayton Perry allegedly downed 14 alcoholic drinks in four hours has received two warnings from the Texas Alcoholic Beverage Commission in the past, but neither resulted in charges or violations, a spokesman for the agency said Monday.
Because of that, if the Evil Olive Elixir Lounge is found to have over-served Perry, it would be considered a first offense, meaning the TABC would not take action against the establishment, said TABC spokesman Chris Porter.
The agency’s investigation into the matter is ongoing, so for now, the bar may continue operating as usual, he said.
Porter said that in 2017, an employee allegedly sold alcohol to an intoxicated person at the Evil Olive, and in 2019, a patron showed signs of public intoxication during a TABC inspection of the bar. In both cases, TABC issued written warnings that didn’t result in charges or violations, Porter said.
Perry was arrested on a DWI charge on Dec. 28. On Nov. 6, a San Antonio police officer found Perry, the third-term councilman representing District 10, lying in his backyard and smelling of alcohol while his Jeep was still running in the driveway. He later turned himself in and was charged with failure to stop and give information.
After an investigation, SAPD on Dec. 28 filed a probable cause affidavit that stated surveillance footage from the Evil Olive showed Perry consuming 14 drinks over a four-hour period before leaving the bar. Other footage showed him getting into his vehicle and driving away.
Porter said that in general, TABC opens investigations into cases that result in an alcohol-related fatality, serious injury or property damage, with law enforcement notifying the agency. In this case, media coverage around the affidavit alleging Perry consumed 14 drinks in four hours prompted the investigation, he said.
If the bar is found to have over-served Perry, TABC would likely not take action against the business, but instead would file misdemeanor charges against the individual who served Perry.
Ultimately, it would be up to the prosecutor to charge the server or not.
“Speaking hypothetically, if an investigation were to find that somebody did in fact serve someone 14 drinks over the course of [four] hours, that could be basis for a restrained case,” Porter said, meaning charges against the server.
As part of its investigation, the TABC is conducting interviews with bartenders, business owners, reviewing video surveillance footage and physical and electronic records, Porter said.
Calls to the Evil Olive on Monday were not returned.
It’s unclear how long the investigation will take.
“Our investigation is still ongoing and we have not yet made any findings regarding … any accountability or liability on the part of the restaurant or the bar at the time at the present time,” Porter said. “For now, there has been no action by TABC.”
In 2022, TABC filed 1,800 administrative violations against businesses in the alcoholic beverage industry statewide. The majority of those cases were regulatory in nature, as opposed to public safety violations, the agency said. Just 48 were related to the sale of alcohol to an intoxicated person.
Joel Rivas, founder of Saint City Culinary Foundation, a nonprofit that offers support to those working in the food and service industry, said TABC charging bartenders or servers for over-serving alcoholic beverages “can be fairly common.”
To serve alcoholic beverages, servers and bartenders must be licensed to do so by the TABC. In that training, it’s made clear they are individually responsible for over-serving alcoholic beverages to a customer, he said.
“Servers and bartenders should be aware of that,” Rivas said. “I firmly believe that business owners and operators need to reinforce that with their staff. It’s a serious infraction that could come back on them, and they need to empower their staff to cut people off when they deem it necessary.”
This article has been updated to correctly state one of the charges filed against Perry. The misdemeanor charge is failure to stop and give information.