1-1 By: Yarbrough (Senate Sponsor - Cain) H.B. No. 1419
1-2 (In the Senate - Received from the House May 4, 1995;
1-3 May 5, 1995, read first time and referred to Committee on State
1-4 Affairs; May 12, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0; May 12, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1419 By: Cain
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to certificates and permits issued by the Alcoholic
1-11 Beverage Commission and to regulation of private club permittees by
1-12 certain municipalities.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 25, Alcoholic Beverage Code, is amended
1-15 by adding Section 25.13 to read as follows:
1-16 Sec. 25.13. FOOD AND BEVERAGE CERTIFICATE. (a) A holder of
1-17 a wine and beer retailer's permit may be issued a food and beverage
1-18 certificate by the commission if foodservice is the primary
1-19 business being operated on the premises by the permittee.
1-20 (b) An applicant or holder of a food and beverage
1-21 certificate shall have foodservice facilities for the preparation
1-22 and service of multiple entrees. The commission shall adopt rules
1-23 as necessary to assure that the holder of a food and beverage
1-24 certificate maintains foodservice as the primary business on the
1-25 premises for which a food and beverage certificate has been issued.
1-26 (c) The fee for a food and beverage certificate shall be set
1-27 at a level sufficient to recover the cost of issuing the
1-28 certificate and administering this section.
1-29 (d) A certificate issued under this section expires on the
1-30 expiration of the primary wine and beer retailer's permit. A
1-31 certificate may be canceled at any time if the commission finds
1-32 that the holder of the certificate is not operating primarily as a
1-33 foodservice establishment. For the purposes of this section it
1-34 shall be presumed that a permittee is not primarily operating as a
1-35 foodservice establishment if alcohol sales are in excess of 75% of
1-36 the gross receipts of the premises. The commission may impose a
1-37 fine not to exceed $5,000 on the holder of a food and beverage
1-38 certificate not operating as a foodservice establishment and may,
1-39 upon finding that the permittee knowingly operated under a food and
1-40 beverage certificate while not complying with this section, cancel
1-41 the permittee's wine and beer retailer's permit.
1-42 (e) The statutory provisions and rules applying to the
1-43 holder of a wine and beer retailer's permit as of August 25, 1995
1-44 also apply to the holder of a food and beverage certificate. A
1-45 statutory provision or rule applicable to a wine and beer
1-46 retailer's permit effective after August 25, 1995 shall not apply
1-47 to the holder of a food and beverage certificate unless the statute
1-48 or rule specifically references application to the holder of a food
1-49 and beverage certificate.
1-50 SECTION 2. Chapter 28, Alcoholic Beverage Code, is amended
1-51 by adding Section 28.18 to read as follows:
1-52 Sec. 2818. FOOD AND BEVERAGE CERTIFICATE. (a) A holder of
1-53 a mixed beverage permit may be issued a food and beverage
1-54 certificate by the commission if the gross receipts of mixed
1-55 beverages sold by the holder are 75 percent or less of the total
1-56 gross receipts from the premises.
1-57 (b) An applicant or holder of a food and beverage
1-58 certificate shall have foodservice facilities for the preparation
1-59 and service of multiple entrees. The commission shall adopt rules
1-60 as necessary to assure that the holder of a food and beverage
1-61 certificate maintains foodservice on the premises for which a food
1-62 and beverage certificate has been issued.
1-63 (c) The fee for a food and beverage certificate shall be set
1-64 at a level sufficient to recover the cost of issuing the
1-65 certificate and administering this section.
1-66 (d) On receipt of an application for a renewal of a mixed
1-67 beverage permit by a holder who also holds a food and beverage
1-68 certificate, the commission shall request certification by the
2-1 comptroller to determine whether the holder is in compliance with
2-2 Subsection (a). In determining compliance with Subsection (a) the
2-3 comptroller shall compare the permittee's gross receipts tax
2-4 reports with the permittee's sales tax reports for the premises.
2-5 If the comptroller does not certify that the holder is in
2-6 compliance with Subsection (a), the commission may not renew the
2-7 certificate.
2-8 (e) A certificate expires on the expiration of the primary
2-9 mixed beverage permit. A holder of a mixed beverage permit who is
2-10 denied renewal of a certificate may not apply for a new certificate
2-11 until the day after the first anniversary of the determination of
2-12 the comptroller under Subsection (d).
2-13 (f) The statutory provisions and rules applying to the
2-14 holder of a mixed beverage permit as of August 25, 1995 also apply
2-15 to the holder of a food and beverage certificate. A statutory
2-16 provision or rule applicable to a mixed beverage permit effective
2-17 after August 25, 1995 shall not apply to the holder of a food and
2-18 beverage certificate unless the statute or rule specifically
2-19 references application to the holder of a food and beverage
2-20 certificate.
2-21 SECTION 3. Chapter 32, Alcoholic Beverage Code, is amended
2-22 by adding Section 32.23 to read as follows:
2-23 Sec. 32.23. FOOD AND BEVERAGE CERTIFICATE. (a) A holder of
2-24 a private club registration permit may be issued a food and
2-25 beverage certificate by the commission if the gross receipts of
2-26 mixed beverages served by the holder are 75 percent or less of the
2-27 total gross receipts from the premises.
2-28 (b) An applicant or holder of a food and beverage
2-29 certificate shall have foodservice facilities for the preparation
2-30 and service of multiple entrees. The commission shall adopt rules
2-31 as necessary to assure that the holder of a food and beverage
2-32 certificate maintains foodservice on the premises for which a food
2-33 and beverage certificate has been issued.
2-34 (c) The fee for a food and beverage certificate shall be set
2-35 at a level sufficient to recover the cost of issuing the
2-36 certificate and administering this section.
2-37 (d) On receipt of an application for a renewal of a private
2-38 club registration permit by a holder who also holds a food and
2-39 beverage certificate, the commission shall request certification by
2-40 the comptroller to determine whether the holder is in compliance
2-41 with Subsection (a). In determining compliance with Subsection (a)
2-42 the comptroller shall compare the permittee's gross receipts tax
2-43 reports with the permittee's sales tax reports for the premises.
2-44 If the comptroller does not certify that the holder is in
2-45 compliance with Subsection (a), the commission may not renew the
2-46 certificate.
2-47 (e) A certificate expires on the expiration of the primary
2-48 private club registration permit. A holder of a private club
2-49 registration permit who is denied renewal of a certificate may not
2-50 apply for a new certificate until the day after the first
2-51 anniversary of the determination of the comptroller under
2-52 Subsection (d).
2-53 (f) The statutory provisions and rules applying to the
2-54 holder of a private club permit as of August 25, 1995 also apply to
2-55 the holder of a food and beverage certificate. A statutory
2-56 provision or rule applicable to a private club permit effective
2-57 after August 25, 1995 shall not apply to the holder of a food and
2-58 beverage certificate unless the statute or rule specifically
2-59 references application to the holder of a food and beverage
2-60 certificate.
2-61 SECTION 4. Chapter 69, Alcoholic Beverage Code, is amended
2-62 by adding Section 69.16 to read as follows:
2-63 Sec. 69.16. FOOD AND BEVERAGE CERTIFICATE. (a) A holder of
2-64 a retail dealer's on-premise license may be issued a food and
2-65 beverage certificate by the commission if foodservice is the
2-66 primary business being operated on the premises by the permittee.
2-67 (b) An applicant or holder of a food and beverage
2-68 certificate shall have foodservice facilities for the preparation
2-69 and service of multiple entrees. The commission shall adopt rules
2-70 as necessary to assure that the holder of a food and beverage
3-1 certificate maintains foodservice as the primary business on the
3-2 premises for which a food and beverage certificate has been issued.
3-3 (c) The fee for a food and beverage certificate shall be set
3-4 at a level sufficient to recover the cost of issuing the
3-5 certificate and administering this section.
3-6 (d) A certificate issued under this section expires on the
3-7 expiration of the primary retail dealer's on-premise license. A
3-8 certificate may be canceled at any time if the commission finds
3-9 that the holder of the certificate is not operating primarily as a
3-10 foodservice establishment. For the purposes of this section it
3-11 shall be presumed that a permittee is not primarily operating as a
3-12 foodservice establishment if alcohol sales are in excess of 75% of
3-13 the gross receipts of the premises. The commission may impose a
3-14 fine not to exceed $5,000 on the holder of a food and beverage
3-15 certificate not operating as a foodservice establishment and may,
3-16 upon finding that the permittee knowingly operated under a food and
3-17 beverage certificate while not complying with this section, cancel
3-18 the licensee's retail dealer's on-premise license.
3-19 (e) The statutory provisions and rules applying to the
3-20 holder of a retail dealer's on-premise license as of August 25,
3-21 1995 also apply to the holder of a food and beverage certificate.
3-22 A statutory provision or rule applicable to a retail dealer's
3-23 on-premise license effective after August 25, 1995 shall not apply
3-24 to the holder of a food and beverage certificate unless the statute
3-25 or rule specifically references application to the holder of a food
3-26 and beverage certificate.
3-27 SECTION 5. Subchapter B, Chapter 11, Alcoholic Beverage
3-28 Code, is amended by adding Section 11.392 to read as follows:
3-29 Sec. 11.392. NOTICE OF PRIVATE CLUB APPLICATION OR RENEWAL.
3-30 (a) The commission shall give notice of an application for a
3-31 permit or renewal of a permit issued under Chapter 32 or 33 to:
3-32 (1) the state senator and the state representative who
3-33 represent the district in which the premises are located;
3-34 (2) the municipal governing body, if the premises are
3-35 located in an incorporated area, and the commissioners court of the
3-36 county in which the premises are located; and
3-37 (3) the chief of police of the municipality, if the
3-38 premises are located in an incorporated area, and the sheriff of
3-39 the county in which the premises are located.
3-40 (b) Notwithstanding Section 11.39(c) of this chapter, the
3-41 applicant for a private club permit renewal shall publish notice of
3-42 the renewal application in a newspaper of general circulation in
3-43 accordance with the requirements of Sections 11.39(a) and (b).
3-44 (c) Notices provided under this section must be given not
3-45 later than:
3-46 (1) the fifth day after the date the application is
3-47 filed; or
3-48 (2) the 31st day before the expiration date of a
3-49 permit in the case of renewal.
3-50 (d) This section does not apply to a fraternal or veterans
3-51 organization or the holder of a food and beverage certificate.
3-52 SECTION 6. Section 11.61(d), Alcoholic Beverage Code, is
3-53 amended to read as follows:
3-54 (d) The commission or administrator without a hearing may
3-55 for investigative purposes summarily suspend a mixed beverage
3-56 permit <, a private club registration permit,> or a wine and beer
3-57 retailer's permit for not more than seven days if the commission or
3-58 administrator finds that a shooting, stabbing, or murder has
3-59 occurred on the licensed premises which is likely to result in a
3-60 subsequent act of violence. Notice of the order suspending the
3-61 permit shall be given to the permittee personally with 24 hours of
3-62 the time the violent act occurs. If the permittee cannot be
3-63 located, notice shall be provided by posting a copy of the order on
3-64 the front door of the licensed premises.
3-65 SECTION 7. Subchapter C, Chapter 11, Alcoholic Beverage
3-66 Code, is amended by adding Sections 11.612 and 11.613 to read as
3-67 follows:
3-68 Sec. 11.612. CANCELLATION OF PRIVATE CLUB PERMIT. (a) The
3-69 commission or administrator may cancel an original or a renewal
3-70 permit issued under Chapter 32 or 33 and may refuse to issue any
4-1 new alcoholic beverage permit for the same premises for one year
4-2 after the date of cancellation if:
4-3 (1) the chief of police of the municipality, if the
4-4 premises are located in an incorporated area, or the sheriff of the
4-5 county in which the premises are located has submitted a sworn
4-6 statement to the commission stating specific allegations that the
4-7 place or manner in which the permittee conducts its business
4-8 endangers the general welfare, health, peace, morals, or safety of
4-9 the community; and
4-10 (2) the commission or administrator finds, after
4-11 notice and hearing within the county where the premises are
4-12 located, that the place or manner in which the permittee conducts
4-13 its business does in fact endanger the general welfare, health,
4-14 peace, morals, or safety of the community.
4-15 (b) This section does not apply to a permit issued to a
4-16 fraternal or veterans organization or the holder of a food and
4-17 beverage certificate.
4-18 Sec. 11.613. SUMMARY SUSPENSION OF PRIVATE CLUB PERMIT. The
4-19 commission or administrator without a hearing may for investigative
4-20 purposes summarily suspend a permit issued under Chapter 32 or 33
4-21 for not more than seven days if the commission or administrator
4-22 finds that a shooting, stabbing or murder has occurred on the
4-23 licensed premises that is likely to result in a subsequent act of
4-24 violence. Notice of the order suspending the permit shall be given
4-25 to the permittee personally within 72 hours of the time the violent
4-26 act occurs. If the permittee cannot be located, notice shall be
4-27 provided by posting a copy of the order on the front door of the
4-28 licensed premises.
4-29 SECTION 8. Section 109.57, Alcoholic Beverage Code, is
4-30 amended by adding Subsection (e) to read as follows:
4-31 (e) A municipality located in a county that has a population
4-32 of 1.2 million or more and that is adjacent to a county with a
4-33 population of more than 250,000 or a municipality located in a
4-34 county with a population of 250,000 or more and that is adjacent to
4-35 a county with a population of 1.2 million or more may regulate, in
4-36 a manner not otherwise prohibited by law, the location of an
4-37 establishment issued a permit under Chapter 32 or 33 if:
4-38 (1) the establishment derives 35 percent or more of
4-39 the establishment's gross revenue from the on-premises sale or
4-40 service of alcoholic beverages and the premises of the
4-41 establishment are located in a dry area; and
4-42 (2) the permit is not issued to a fraternal or
4-43 veterans organization or the holder of a food and beverage
4-44 certificate.
4-45 SECTION 9. The importance of this legislation and the
4-46 crowded condition of the calendars in both houses create an
4-47 emergency and an imperative public necessity that the
4-48 constitutional rule requiring bills to be read on three several
4-49 days in each house be suspended, and this rule is hereby suspended.
4-50 * * * * *