| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the regulation of restaurants and third-party food |
|
|
delivery services, including the issuance of certain permits to |
|
|
restaurants. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 1.04, Alcoholic Beverage Code, is |
|
|
amended by adding Subdivision (29) to read as follows: |
|
|
(29) "Restaurant" means a business that: |
|
|
(A) operates its own permanent food service |
|
|
facility with commercial cooking equipment on its premises; and |
|
|
(B) prepares and offers to sell multiple entrees |
|
|
for consumption on or off the premises. |
|
|
SECTION 2. Sections 25.13(a-1), (b-1), and (d), Alcoholic |
|
|
Beverage Code, as effective September 1, 2021, are amended to read |
|
|
as follows: |
|
|
(a-1) A holder of a wine and malt beverage retailer's permit |
|
|
that is a restaurant may be issued a food and beverage certificate |
|
|
by the commission if the commission finds that the receipts from the |
|
|
sale of alcoholic beverages by the permit holder at the location are |
|
|
60 percent or less of the total receipts from the location. |
|
|
(b-1) [The commission shall adopt rules requiring the |
|
|
holder of a food and beverage certificate to assure that permanent |
|
|
food service facilities for the preparation and service of multiple |
|
|
entrees for consumption at the location are available at the |
|
|
location.] The commission may exempt permittees who are |
|
|
concessionaires in public entertainment venues such as sports |
|
|
stadiums and convention centers from: |
|
|
(1) the requirement that the permittee operate its own |
|
|
permanent food service facility with commercial cooking equipment |
|
|
on its premises; and |
|
|
(2) the sales requirements under Subsection |
|
|
[Subsections] (a-1) [and (b)]. |
|
|
(d) A certificate issued under this section expires on the |
|
|
expiration of the primary wine and malt beverage retailer's permit. |
|
|
A certificate may be canceled at any time, and the renewal of a |
|
|
certificate may be denied, if the commission finds that the holder |
|
|
of the certificate is in violation of Subsection (a-1) [or (b) or a |
|
|
rule adopted under Subsection (b-1)]. On finding that the |
|
|
permittee knowingly operated under a food and beverage certificate |
|
|
while not complying with this section [or a rule adopted under |
|
|
Subsection (b-1)], the commission may cancel or deny the renewal of |
|
|
the permittee's wine and malt beverage retailer's permit. The |
|
|
holder of a wine and malt beverage retailer's permit whose |
|
|
certificate has been canceled or who is denied renewal of a |
|
|
certificate under this subsection may not apply for a new |
|
|
certificate until the day after the first anniversary of the date |
|
|
the certificate was canceled or the renewal of the certificate was |
|
|
denied. |
|
|
SECTION 3. Sections 28.18(a-1), (b-1), and (e), Alcoholic |
|
|
Beverage Code, are amended to read as follows: |
|
|
(a-1) A holder of a mixed beverage permit that is a |
|
|
restaurant may be issued a food and beverage certificate by the |
|
|
commission if the commission finds that the receipts from the sale |
|
|
of alcoholic beverages by the permit holder at the location are 60 |
|
|
percent or less of the total receipts from the location. |
|
|
(b-1) [The commission shall adopt rules requiring the |
|
|
holder of a food and beverage certificate to assure that permanent |
|
|
food service facilities for the preparation and service of multiple |
|
|
entrees for consumption at the location are available at the |
|
|
location.] The commission may exempt permittees who are |
|
|
concessionaires in public entertainment venues such as sports |
|
|
stadiums and convention centers from: |
|
|
(1) the requirement that the permittee operate its own |
|
|
permanent food service facility with commercial cooking equipment |
|
|
on its premises; and |
|
|
(2) the sales requirements under Subsection |
|
|
[Subsections] (a-1) [and (b)]. |
|
|
(e) A certificate issued under this section expires on the |
|
|
expiration of the primary mixed beverage permit. A certificate may |
|
|
be canceled at any time, and the renewal of a certificate may be |
|
|
denied, if the commission finds that the holder of the certificate |
|
|
is in violation of Subsection (a-1) [or (b) or a rule adopted under |
|
|
Subsection (b-1)]. On finding that the permittee knowingly |
|
|
operated under a food and beverage certificate while not complying |
|
|
with this section [or a rule adopted under Subsection (b-1)], the |
|
|
commission may cancel or deny the renewal of the permittee's mixed |
|
|
beverage permit. A mixed beverage permit issued in an area where |
|
|
the legal sale of mixed beverages was authorized by a local option |
|
|
election under Section 501.035(b)(9), Election Code, is canceled by |
|
|
operation of law if the food and beverage certificate is canceled or |
|
|
is not renewed. The holder of a mixed beverage permit whose |
|
|
certificate has been canceled or who is denied renewal of a |
|
|
certificate under this subsection may not apply for a new |
|
|
certificate until the day after the first anniversary of the date |
|
|
the certificate was canceled or the renewal of the certificate was |
|
|
denied. |
|
|
SECTION 4. Sections 32.23(a-1), (b-1), and (e), Alcoholic |
|
|
Beverage Code, are amended to read as follows: |
|
|
(a-1) A holder of a private club registration permit that is |
|
|
a restaurant may be issued a food and beverage certificate by the |
|
|
commission if the commission finds that the receipts from the |
|
|
service of alcoholic beverages by the permit holder at the location |
|
|
are 60 percent or less of the total receipts from the location. |
|
|
(b-1) [The commission shall adopt rules requiring the |
|
|
holder of a food and beverage certificate to assure that permanent |
|
|
food service facilities for the preparation and service of multiple |
|
|
entrees for consumption at the location are available at the |
|
|
location.] The commission may exempt permittees who are |
|
|
concessionaires in public entertainment venues such as sports |
|
|
stadiums and convention centers from: |
|
|
(1) the requirement that the permittee operate its own |
|
|
permanent food service facility with commercial cooking equipment |
|
|
on its premises; and |
|
|
(2) the sales requirements under Subsection |
|
|
[Subsections] (a-1) [and (b)]. |
|
|
(e) A certificate issued under this section expires on the |
|
|
expiration of the primary private club registration permit. A |
|
|
certificate may be canceled at any time, and the renewal of a |
|
|
certificate may be denied, if the commission finds that the holder |
|
|
of the certificate is in violation of Subsection (a-1) [or (b) or a |
|
|
rule adopted under Subsection (b-1)]. On finding that the |
|
|
permittee knowingly operated under a food and beverage certificate |
|
|
while not complying with this section [or a rule adopted under |
|
|
Subsection (b-1)], the commission may cancel or deny the renewal of |
|
|
the permittee's private club registration permit. The holder of a |
|
|
private club registration permit whose certificate has been |
|
|
canceled or who is denied renewal of a certificate under this |
|
|
subsection may not apply for a new certificate until the day after |
|
|
the first anniversary of the date the certificate was canceled or |
|
|
the renewal of the certificate was denied. |
|
|
SECTION 5. Sections 69.16(a-1), (b-1), and (d), Alcoholic |
|
|
Beverage Code, are amended to read as follows: |
|
|
(a-1) A holder of a retail dealer's on-premise license that |
|
|
is a restaurant may be issued a food and beverage certificate by the |
|
|
commission if the commission finds that the receipts from the sale |
|
|
of alcoholic beverages by the license holder at the location are 60 |
|
|
percent or less of the total receipts from the location. |
|
|
(b-1) [The commission shall adopt rules requiring the |
|
|
holder of a food and beverage certificate to assure that permanent |
|
|
food service facilities for the preparation and service of multiple |
|
|
entrees for consumption at the location are available at the |
|
|
location.] The commission may exempt licensees who are |
|
|
concessionaires in public entertainment venues such as sports |
|
|
stadiums and convention centers from: |
|
|
(1) the requirement that the permittee operate its own |
|
|
permanent food service facility with commercial cooking equipment |
|
|
on its premises; and |
|
|
(2) the sales requirements under Subsection |
|
|
[Subsections] (a-1) [and (b)]. |
|
|
(d) A certificate issued under this section expires on the |
|
|
expiration of the primary retail dealer's on-premise license. A |
|
|
certificate may be canceled at any time, and the renewal of a |
|
|
certificate may be denied, if the commission finds that the holder |
|
|
of the certificate is in violation of Subsection (a-1) [or (b) or a |
|
|
rule adopted under Subsection (b-1)]. On finding that the licensee |
|
|
knowingly operated under a food and beverage certificate while not |
|
|
complying with this section [or a rule adopted under Subsection |
|
|
(b-1)], the commission may cancel or deny the renewal of the |
|
|
licensee's retail dealer's on-premise license. The holder of a |
|
|
retail dealer's on-premise license whose certificate has been |
|
|
canceled or who is denied renewal of a certificate under this |
|
|
subsection may not apply for a new certificate until the day after |
|
|
the first anniversary of the date the certificate was canceled or |
|
|
the renewal of the certificate was denied. |
|
|
SECTION 6. Subtitle C, Title 5, Business & Commerce Code, is |
|
|
amended by adding Chapter 114 to read as follows: |
|
|
CHAPTER 114. THIRD-PARTY FOOD DELIVERY SERVICES |
|
|
Sec. 114.0001. DEFINITIONS. In this chapter: |
|
|
(1) "Mark" and "trade name" have the meanings assigned |
|
|
by Section 16.001. |
|
|
(2) "Restaurant" has the meaning assigned by Section |
|
|
1.04, Alcoholic Beverage Code. |
|
|
(3) "Third-party food delivery service" means a |
|
|
website, mobile application, or other Internet-based service that |
|
|
acts as an intermediary between consumers and multiple restaurants |
|
|
not owned or operated by the service to arrange for the delivery of |
|
|
food or beverages from those restaurants. |
|
|
Sec. 114.0002. PROHIBITED ACTS. A third-party food |
|
|
delivery service may not: |
|
|
(1) arrange for the delivery of food or beverages from |
|
|
a restaurant in this state unless the service has filed a |
|
|
certificate of formation or registration with the secretary of |
|
|
state; |
|
|
(2) use a restaurant's mark or trade name in connection |
|
|
with the service in a misleading way that suggests the restaurant |
|
|
sponsors or endorses the service; |
|
|
(3) alter a restaurant's pricing for a food or beverage |
|
|
ordered from the restaurant on the service, except that the service |
|
|
may charge additional fees for use of the service if the fees are |
|
|
clearly expressed to the consumer as a separate charge from the |
|
|
price of the food or beverage ordered from the restaurant; or |
|
|
(4) charge a restaurant a fee in connection with the |
|
|
service's delivery of food or beverages from that restaurant unless |
|
|
the restaurant has agreed to pay a fee to the service under an |
|
|
agreement under Section 114.0004. |
|
|
Sec. 114.0003. REQUIREMENTS FOR SERVICE. A third-party |
|
|
food delivery service shall: |
|
|
(1) provide a consumer a clearly identified mechanism |
|
|
for the consumer to express concerns or complaints directly to the |
|
|
service regarding a delivery of food or beverages arranged through |
|
|
the service; and |
|
|
(2) remove a restaurant from the service not later |
|
|
than the 10th day after the date the service receives a request from |
|
|
the restaurant to be removed from the service if the service does |
|
|
not have an agreement with the restaurant to provide the delivery |
|
|
service. |
|
|
Sec. 114.0004. TERMS OF AGREEMENT WITH RESTAURANT. (a) An |
|
|
agreement between a third-party food delivery service and a |
|
|
restaurant must: |
|
|
(1) be in writing; |
|
|
(2) expressly authorize the service to arrange for the |
|
|
delivery of food or beverages from that restaurant; and |
|
|
(3) clearly state each fee, including a commission or |
|
|
other charge, that the restaurant will be required to pay or absorb |
|
|
in connection with the service's delivery of food from that |
|
|
restaurant. |
|
|
(b) The agreement may not include any provision that |
|
|
requires the restaurant to indemnify the third-party food delivery |
|
|
service, including an employee or independent contractor of the |
|
|
service, for claims or liabilities resulting from acts or omissions |
|
|
of the service or of an employee or independent contractor of the |
|
|
service. |
|
|
(c) A provision in an agreement that violates Subsection (b) |
|
|
is void and unenforceable. |
|
|
Sec. 114.0005. PRIVATE CAUSE OF ACTION. (a) If a |
|
|
third-party food delivery service violates Section 114.0002 or |
|
|
114.0003, a restaurant aggrieved by the violation may bring an |
|
|
action against the service for: |
|
|
(1) injunctive relief; and |
|
|
(2) damages in an amount equal to: |
|
|
(A) the restaurant's actual damages arising from |
|
|
the violation; or |
|
|
(B) the service's profits arising from the |
|
|
violation. |
|
|
(b) If the court finds that the defendant committed the |
|
|
violation knowingly or in bad faith, the court may award the |
|
|
plaintiff: |
|
|
(1) exemplary damages in an amount that is not more |
|
|
than three times the sum of: |
|
|
(A) the plaintiff's actual damages; and |
|
|
(B) the defendant's profits arising from the |
|
|
violation; and |
|
|
(2) the plaintiff's reasonable attorney's fees. |
|
|
SECTION 7. Subchapter D, Chapter 438, Health and Safety |
|
|
Code, is amended by adding Section 438.0432 to read as follows: |
|
|
Sec. 438.0432. DELIVERY SERVICE FOOD SAFETY ACCREDITATION. |
|
|
(a) In this section, "third-party food delivery service" has the |
|
|
meaning assigned by Section 114.0001, Business & Commerce Code. |
|
|
(b) Notwithstanding Section 438.043, the department as |
|
|
provided by this section may accredit an education program on basic |
|
|
food safety for third-party food delivery service employees and |
|
|
independent contractors who deliver food as authorized by Chapter |
|
|
114, Business & Commerce Code. |
|
|
(c) The executive commissioner shall by rule define the |
|
|
training on basic food safety that must be included in a third-party |
|
|
food delivery service course curriculum. The course length may not |
|
|
exceed 30 minutes. |
|
|
(d) An education program accredited under this section may |
|
|
require a participant to achieve a passing score on an examination |
|
|
to successfully complete the course for certification. |
|
|
(e) An education program accredited under this section may |
|
|
be provided through the Internet or a mobile application. |
|
|
(f) The department or a local health authority may not |
|
|
require a third-party food delivery service employee or independent |
|
|
contractor to complete an education program accredited under this |
|
|
section. A local health authority may not charge a fee to an |
|
|
employee or contractor who provides proof of completion of an |
|
|
education program accredited under this section. |
|
|
SECTION 8. Chapter 250, Local Government Code, is amended |
|
|
by adding Section 250.011 to read as follows: |
|
|
Sec. 250.011. THIRD-PARTY FOOD DELIVERY SERVICES. (a) In |
|
|
this section, "third-party food delivery service" has the meaning |
|
|
assigned by Section 114.0001, Business & Commerce Code. |
|
|
(b) Notwithstanding any other law, a municipality or county |
|
|
may not adopt or enforce an ordinance or regulation that: |
|
|
(1) applies requirements to a third-party food |
|
|
delivery service that are more restrictive than the requirements |
|
|
that apply to the service under Chapter 114, Business & Commerce |
|
|
Code; |
|
|
(2) affects the fees charged to a restaurant by a |
|
|
third-party food delivery service; or |
|
|
(3) affects the terms of an agreement between a |
|
|
third-party food delivery service and a restaurant required under |
|
|
Section 114.0004, Business & Commerce Code. |
|
|
SECTION 9. The following sections of the Alcoholic Beverage |
|
|
Code are repealed: |
|
|
(1) Section 25.13(b), as effective September 1, 2021; |
|
|
(2) Section 28.18(b); |
|
|
(3) Section 32.23(b); and |
|
|
(4) Section 69.16(b). |
|
|
SECTION 10. Section 114.0004, Business & Commerce Code, as |
|
|
added by this Act, applies only to an agreement entered into or |
|
|
renewed on or after the effective date of this Act. |
|
|
SECTION 11. This Act takes effect September 1, 2021. |