By Yarbrough H.B. No. 2787
75R8196 PAM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to combining privileges of certain retail off-premises
1-3 alcoholic beverage permits.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 11.49(b), (c), and (d), Alcoholic
1-6 Beverage Code, are amended to read as follows:
1-7 (b)(1) Subject to the approval of the commission or the
1-8 administrator, and except as provided in Subsection (c) of this
1-9 section, an applicant for a permit or license may designate a
1-10 portion of the grounds, buildings, vehicles, and appurtenances to
1-11 be excluded from the licensed premises. (2) If such a designation
1-12 has been made and approved as to the holder of a license or permit
1-13 authorizing the sale of alcoholic beverages at retail or as to a
1-14 private club registration permit, the sharing of space, employees,
1-15 business facilities, and services with another business entity
1-16 (including the permittee's lessor, which, if a corporation, may be
1-17 a domestic or foreign corporation, but excluding a business entity
1-18 holding any type of winery permit, a manufacturer's license, or a
1-19 general, local, or branch distributor's license), does not
1-20 constitute a subterfuge or surrender of exclusive control in
1-21 violation of Section 109.53 of this code or the use or display of
1-22 the license for the benefit of another in violation of Subdivision
1-23 (15) of Subsection (a) of Section 61.71 of this code. This
1-24 subsection shall not apply to original or renewal package store
2-1 permits, wine and beer only package store permits, local
2-2 distributor's permits, or any type of wholesaler's permits.
2-3 (c) An applicant for an original or renewal package store
2-4 permit, wine and beer only package store permit, local
2-5 distributor's permit, or any type of wholesaler's permit may not
2-6 take advantage of the right conferred by Subsection (b) of this
2-7 section except as permitted in Section 11.50 or 109.53 of this
2-8 code.
2-9 (d) Any holder of a package store, wine and beer only
2-10 package store, wholesaler's, or local distributor's permit
2-11 [permittee] who is injured in the holder's [his] business or
2-12 property by another person (other than a person in the person's
2-13 [his] capacity as the holder of a wine and beer retailer's permit,
2-14 wine and beer retailer's off-premise permit, private club
2-15 registration permit, or mixed beverage permit or any person in the
2-16 capacity of lessor of the holder of such a permit) by reason of
2-17 anything prohibited in this section or Section 109.53 of this code
2-18 is entitled to the same remedies available to a package store
2-19 permittee under Section 109.53 of this code. Except for actions
2-20 brought against a person in the person's [his] capacity as the
2-21 holder of or as the lessor of the holder of a wine and beer
2-22 retailer's permit, wine and beer retailer's off-premise permit,
2-23 mixed beverage permit, or private club registration permit, the
2-24 statute of limitations for any action brought under this section or
2-25 Section 109.53 of this code for any cause of action arising after
2-26 the effective date of this Act is four years unless a false
2-27 affidavit has been filed with the commission in which event the
3-1 statute of limitations is 10 years for all purposes.
3-2 SECTION 2. Section 11.61(b), Alcoholic Beverage Code, is
3-3 amended to read as follows:
3-4 (b) The commission or administrator may suspend for not more
3-5 than 60 days or cancel an original or renewal permit if it is
3-6 found, after notice and hearing, that any of the following is true:
3-7 (1) the permittee has been finally convicted of a
3-8 violation of this code;
3-9 (2) the permittee violated a provision of this code or
3-10 a rule of the commission;
3-11 (3) the permittee was finally convicted of a felony
3-12 while holding an original or renewal permit;
3-13 (4) the permittee made a false or misleading statement
3-14 in connection with the permittee's [his] original or renewal
3-15 application, either in the formal application itself or in any
3-16 other written instrument relating to the application submitted to
3-17 the commission, its officers, or employees;
3-18 (5) the permittee is indebted to the state for taxes,
3-19 fees, or payment of penalties imposed by this code, by a rule of
3-20 the commission, or by Chapter 183, Tax Code;
3-21 (6) the permittee is not of good moral character or
3-22 the permittee's [his] reputation for being a peaceable and
3-23 law-abiding citizen in the community where the permittee [he]
3-24 resides is bad;
3-25 (7) the place or manner in which the permittee
3-26 conducts the permittee's [his] business warrants the cancellation
3-27 or suspension of the permit based on the general welfare, health,
4-1 peace, morals, and safety of the people and on the public sense of
4-2 decency;
4-3 (8) the permittee is not maintaining an acceptable
4-4 bond;
4-5 (9) the permittee maintains a noisy, lewd, disorderly,
4-6 or unsanitary establishment or has supplied impure or otherwise
4-7 deleterious beverages;
4-8 (10) the permittee is insolvent or mentally or
4-9 physically unable to carry on the management of the permittee's
4-10 [his] establishment;
4-11 (11) the permittee is in the habit of using alcoholic
4-12 beverages to excess;
4-13 (12) the permittee knowingly misrepresented to a
4-14 customer or the public any liquor sold by the permittee [him];
4-15 (13) the permittee was intoxicated on the licensed
4-16 premises;
4-17 (14) the permittee sold or delivered an alcoholic
4-18 beverage to an intoxicated person;
4-19 (15) the permittee possessed on the licensed premises
4-20 an alcoholic beverage that the permittee [he] was not authorized by
4-21 the permittee's [his] permit to purchase and sell;
4-22 (16) a package store or wine and beer only package
4-23 store permittee transported or shipped liquor, or caused it to be
4-24 transported or shipped, into a dry state or a dry area within this
4-25 state;
4-26 (17) the permittee is residentially domiciled with a
4-27 person who has a financial interest in an establishment engaged in
5-1 the business of selling beer at retail, other than a mixed beverage
5-2 establishment, except as authorized by Section 22.06, 24.05, or
5-3 102.05 of this code;
5-4 (18) the permittee is residentially domiciled with a
5-5 person whose permit or license was cancelled for cause within the
5-6 12-month period preceding the permittee's [his] own application;
5-7 (19) the permittee is not a citizen of the United
5-8 States or has not been a citizen of Texas for a period of one year
5-9 immediately preceding the filing of the permittee's [his]
5-10 application, unless the permittee [he] was issued an original or
5-11 renewal permit on or before September 1, 1948, and has been a
5-12 United States citizen at some time; or
5-13 (20) the permittee permitted a person to open a
5-14 container of alcoholic beverage or possess an open container of
5-15 alcoholic beverage on the licensed premises unless a mixed beverage
5-16 permit has been issued for the premises.
5-17 SECTION 3. Section 22.01, Alcoholic Beverage Code, is
5-18 amended to read as follows:
5-19 Sec. 22.01. AUTHORIZED ACTIVITIES. (a) The holder of a
5-20 package store permit may:
5-21 (1) purchase liquor in this state from the holder of a
5-22 winery, wholesaler's, class B wholesaler's, or wine bottler's
5-23 permit and purchase beer from the holder of a distributor's
5-24 license;
5-25 (2) sell liquor in unbroken original containers on or
5-26 from the holder's [his] licensed premises at retail to consumers
5-27 for off-premises consumption only and not for the purpose of
6-1 resale, except that if the permittee is a hotel, the permittee may
6-2 deliver unbroken packages of liquor to bona fide guests of the
6-3 hotel in their rooms for consumption in their rooms;
6-4 (3) sell malt and vinous liquors in original
6-5 containers of not less than six ounces; [and]
6-6 (4) sell liquor to holders of airline beverage permits
6-7 as provided in Section 34.05 of this code; and
6-8 (5) sell beer in lawful, original containers to
6-9 consumers, but not for resale and not to be opened or consumed on
6-10 or near the premises where sold.
6-11 (b) The sale of beer by the holder of a package store permit
6-12 is subject to the same restrictions and penalties governing the
6-13 sale of liquor with regard to:
6-14 (1) hours of sale and delivery;
6-15 (2) sale and delivery on Sunday;
6-16 (3) sale and delivery to minors;
6-17 (4) employment of minors;
6-18 (5) blinds and barriers; and
6-19 (6) advertising.
6-20 SECTION 4. Section 22.02, Alcoholic Beverage Code, is
6-21 amended to read as follows:
6-22 Sec. 22.02. FEE. The annual state fee for a package store
6-23 permit is $560 [$500].
6-24 SECTION 5. Section 22.03(a), Alcoholic Beverage Code, is
6-25 amended to read as follows:
6-26 (a) The holder of a package store permit or wine and beer
6-27 only package store permit issued for a location within a city or
7-1 town or within two miles of the corporate limits of a city or town,
7-2 who also holds a local cartage permit, may make deliveries of and
7-3 collections for alcoholic beverages off the premises in areas where
7-4 the sale of the beverages is legal. The permittee must travel by
7-5 the most direct route and may make deliveries and collections only
7-6 within the city or town or within two miles of its corporate
7-7 limits, and only in response to bona fide orders placed by the
7-8 customer, either in person at the premises, in writing, by mail, or
7-9 by telegraph or telephone. This section shall not be construed as
7-10 preventing a holder of a package store permit or wine and beer only
7-11 package store permit from delivering alcoholic beverages to the
7-12 holder of a carrier's permit for transportation to persons
7-13 authorized to purchase the beverages.
7-14 SECTION 6. Chapter 24, Alcoholic Beverage Code, is amended
7-15 to read as follows:
7-16 CHAPTER 24. WINE AND BEER ONLY PACKAGE STORE PERMIT
7-17 Sec. 24.01. AUTHORIZED ACTIVITIES. The holder of a wine and
7-18 beer only package store permit may:
7-19 (1) purchase ale, wine, and vinous liquors in this
7-20 state from the holder of a winery, wine bottler's, wholesaler's or
7-21 class B wholesaler's permit; [and]
7-22 (2) purchase beer in lawful, original containers from
7-23 the holder of a distributor's license; and
7-24 (3) sell those beverages to consumers at retail on or
7-25 from the licensed premises in unbroken original containers of not
7-26 less than six ounces for off-premises consumption only and not for
7-27 the purpose of resale.
8-1 Sec. 24.02. FEE. The annual state fee for a wine and beer
8-2 only package store permit is $135 [$75].
8-3 Sec. 24.03. DELIVERIES AND COLLECTIONS. The holder of a
8-4 wine and beer only package store permit may make deliveries to and
8-5 collections from customers as provided in Section 22.03 of this
8-6 code.
8-7 Sec. 24.04. DESIGNATION OF PLACE OF STORAGE. The owner of
8-8 more than one wine and beer only package store who is also the
8-9 holder of a local cartage permit may designate one of the owner's
8-10 [his] places of business as a place of storage. The owner [He]
8-11 may transfer alcoholic beverages to and from the owner's [his]
8-12 place of storage and the owner's [his] other stores in the same
8-13 county, subject to rules prescribed by the commission.
8-14 Sec. 24.05. PROHIBITED INTERESTS. (a) No person who holds
8-15 a wine and beer only package store permit or owns an interest in a
8-16 wine and beer only package store may have a direct or indirect
8-17 interest in any of the following:
8-18 (1) a manufacturer's or general, branch, or local
8-19 distributor's license;
8-20 (2) the business of any of the licenses listed in
8-21 Subdivision (1) of this subsection.
8-22 (b) A person may hold both a wine and beer only package
8-23 store permit and a retail dealer's off-premise license.
8-24 (c) A person may not hold a wine and beer retailer's or wine
8-25 and beer retailer's off-premise permit at the same location where
8-26 the person holds a wine and beer only package store permit.
8-27 [Sec. 24.06. VIOLATION WHEN LICENSE ALSO HELD. If a person
9-1 holding a wine only package store permit who also holds a retail
9-2 dealer's off-premise license for the same location violates a
9-3 provision of this code or a rule or regulation of the commission,
9-4 the violation is a ground for the suspension or cancellation of
9-5 both the wine only package store permit and the retail dealer's
9-6 off-premise license for the premises where the violation was
9-7 committed.]
9-8 Sec. 24.07. [WHEN LICENSE ALSO HELD:] HOURS OF SALE, ETC.
9-9 (a) A holder of a wine and beer only package store permit [who
9-10 also holds a retail dealer's off-premise license for the same
9-11 location] may remain open and sell ale, wine, vinous liquors, and
9-12 beer, for off-premises consumption only, on any day and during the
9-13 same hours that the holder of a wine and beer retailer's permit may
9-14 sell ale, beer, and wine, except that the holder [he] may not sell
9-15 wine or vinous liquor containing more than 14 percent alcohol by
9-16 volume on a Sunday or after 10 p.m. on any day.
9-17 (b) The sale of beer by the holder of a wine and beer only
9-18 package store permit is subject to the same restrictions and
9-19 penalties governing the sale of liquor with regard to:
9-20 (1) delivery on Sunday;
9-21 (2) blinds and barriers; and
9-22 (3) advertising.
9-23 Sec. 24.08. LIMIT ON SINGLE TRANSACTION. A wine and beer
9-24 only package store permittee may not sell more than five gallons of
9-25 ale, wine, and vinous liquors in a single transaction.
9-26 Sec. 24.09. OPENING CONTAINERS PROHIBITED. No person may
9-27 break or open a container of liquor or beer or possess an opened
10-1 container of liquor or beer on the premises of a wine and beer only
10-2 package store.
10-3 Sec. 24.10. BEVERAGE FROM OPENED CONTAINER. No person may
10-4 sell, barter, exchange, deliver, or give away a drink of alcoholic
10-5 beverage from a container that has for any reason been opened or
10-6 broken on the premises of a wine and beer only package store.
10-7 Sec. 24.11. BREACH OF PEACE. The commission or
10-8 administrator may suspend or cancel a wine and beer only package
10-9 store permit after giving the permittee notice and the opportunity
10-10 to show compliance with all requirements of law for the retention
10-11 of the permit if it finds that a breach of the peace has occurred
10-12 on the licensed premises or on premises under the control of the
10-13 permittee and that the breach of the peace was not beyond the
10-14 control of the permittee and resulted from the permittee's [his]
10-15 improper supervision of persons permitted to be on the licensed
10-16 premises or on premises under the permittee's [his] control.
10-17 SECTION 7. Section 43.01(b), Alcoholic Beverage Code, is
10-18 amended to read as follows:
10-19 (b) A package store, wine and beer only package store, or
10-20 local distributor's permittee who also holds a local cartage permit
10-21 may transfer alcoholic beverages in accordance with Sections 22.08,
10-22 23.04, and 24.04 of this code.
10-23 SECTION 8. Section 43.04, Alcoholic Beverage Code, is
10-24 amended to read as follows:
10-25 Sec. 43.04. ELIGIBILITY FOR PERMIT. The commission may
10-26 issue a local cartage permit to a warehouse or transfer company or
10-27 to a holder of a package store, wine and beer only package store,
11-1 or local distributor's permit.
11-2 SECTION 9. Section 43.07, Alcoholic Beverage Code, is
11-3 amended to read as follows:
11-4 Sec. 43.07. VIOLATION OF CODE, RULE. If a holder of a local
11-5 cartage permit who also holds a package store permit or wine and
11-6 beer only package store permit violates any provision of this code
11-7 or any rule or regulation of the commission, the violation is a
11-8 ground for the suspension or cancellation of any or all permits or
11-9 licenses held by that person for the premises where the offense was
11-10 committed.
11-11 SECTION 10. Section 64.05, Alcoholic Beverage Code, is
11-12 amended to read as follows:
11-13 Sec. 64.05. PERSONS INELIGIBLE FOR LICENSE. A general
11-14 distributor's license may not be issued to a person who is the
11-15 holder of a package store permit or a wine and beer only package
11-16 store permit.
11-17 SECTION 11. Section 65.05, Alcoholic Beverage Code, is
11-18 amended to read as follows:
11-19 Sec. 65.05. PERSONS INELIGIBLE FOR LICENSE. A local
11-20 distributor's license may not be issued to any person who is the
11-21 holder of a package store permit or a wine and beer only package
11-22 store permit.
11-23 SECTION 12. Section 66.04, Alcoholic Beverage Code, is
11-24 amended to read as follows:
11-25 Sec. 66.04. PERSONS INELIGIBLE FOR LICENSE. A branch
11-26 distributor's license may not be issued to a person who holds a
11-27 package store permit or a wine and beer only package store permit,
12-1 or to a person who does not meet the qualifications to be issued an
12-2 original general distributor's license.
12-3 SECTION 13. Section 71.04, Alcoholic Beverage Code, is
12-4 amended to read as follows:
12-5 Sec. 71.04. POSSESSION OF CERTAIN BEVERAGES PROHIBITED. The
12-6 holder of a [No] retail dealer's off-premise license or the
12-7 holder's agent, employee, or [licensee, nor his] officer, may not
12-8 possess [liquor containing alcohol in excess of 14 percent by
12-9 volume] on the licensed premises any alcoholic beverage that is not
12-10 authorized to be purchased and sold by the holder.
12-11 SECTION 14. Section 102.03(b), Alcoholic Beverage Code, is
12-12 amended to read as follows:
12-13 (b) No holder of a permit named in Subsection (a) of this
12-14 section may directly or indirectly, or through a subsidiary,
12-15 affiliate, agent, employee, officer, director, or firm member, own
12-16 an interest of any kind in the premises where the holder of a
12-17 package store [permittee], wine and beer only package store
12-18 [permittee], or mixed beverage permit [permittee] conducts [his]
12-19 business.
12-20 SECTION 15. Section 102.06, Alcoholic Beverage Code, is
12-21 amended to read as follows:
12-22 Sec. 102.06. RELATIONSHIP BETWEEN AGENT OR MANUFACTURER'S
12-23 AGENT AND PACKAGE STORE. No holder of an agent's or manufacturer's
12-24 agent's permit may directly or indirectly have an interest in a
12-25 package store permit or wine and beer only package store permit or
12-26 be residentially domiciled with a person who has a financial
12-27 interest in a package store permit or wine and beer only package
13-1 store permit.
13-2 SECTION 16. Section 102.31(a), Alcoholic Beverage Code, is
13-3 amended to read as follows:
13-4 (a) This section applies to:
13-5 (1) the sale of beer or its containers or the original
13-6 packages in which it is received, packaged, or contained by a
13-7 holder of a distributor's license [licensee] to a holder of a
13-8 retail dealer's on-premise or off-premise license or a holder of
13-9 [licensee,] a wine and beer retailer's [permittee], [or a] wine and
13-10 beer retailer's off-premise, package store, or wine and beer only
13-11 package store permit [permittee]; and
13-12 (2) the sale of malt beverages by a local
13-13 distributor's permittee, or by any licensee authorized to sell
13-14 those beverages for resale, to a mixed beverage or daily temporary
13-15 mixed beverage permittee.
13-16 SECTION 17. Section 102.32(a)(2), Alcoholic Beverage Code,
13-17 is amended to read as follows:
13-18 (2) "Retailer" means a package store, wine and beer
13-19 only package store, wine and beer retailers, wine and beer
13-20 retailer's off-premise, or mixed beverage permittee, any other
13-21 retailer, or a private club registration permittee.
13-22 SECTION 18. Section 104.02(b), Alcoholic Beverage Code, is
13-23 amended to read as follows:
13-24 (b) No person may install or maintain a curtain, hanging,
13-25 sign, or other obstruction that prevents a clear view of the
13-26 interior of a package store or wine and beer only package store,
13-27 except a drug store that holds one of those permits may display
14-1 drug merchandise notwithstanding this subsection.
14-2 SECTION 19. Section 106.09(b), Alcoholic Beverage Code, is
14-3 amended to read as follows:
14-4 (b) A holder of a wine and beer only package store permit
14-5 may employ a person 16 years old or older to work in any capacity.
14-6 SECTION 20. Section 108.52(c), Alcoholic Beverage Code, is
14-7 amended to read as follows:
14-8 (c) Retail licensees and permittees may erect or maintain
14-9 one sign at each place of business which may read as follows:
14-10 (1) if a beer retailer, the sign may read "Beer";
14-11 (2) if an off-premises beer retailer, the sign may
14-12 read "Beer" or "Beer to Go";
14-13 (3) if a wine and beer retailer, the sign may read
14-14 "Beer," "Beer and Wine," or "Beer, Wine and Ale";
14-15 (4) if a wine and beer off-premises retailer, the sign
14-16 may read "Beer," "Beer to Go," "Beer and Wine," "Beer and Wine to
14-17 Go," "Beer, Wine and Ale," or "Beer, Wine and Ale to Go";
14-18 (5) if a package store permittee, the sign may read
14-19 "Package Store," "Liquors," [or] "Wines and Liquors," [and if a
14-20 retail dealer's off-premise license is also held, the sign may read
14-21 "Package Store,"] "Wines, Liquors and Beer," or "Wine, Liquors and
14-22 Beer to Go"; or
14-23 (6) if a wine and beer only package store permittee,
14-24 the sign may read "Wine," [or] "Wines," [and if a retail dealer's
14-25 off-premise license is also held, the sign may read] "Wines and
14-26 Beer," "Wine and Beer," or "Wine and Beer to Go."
14-27 SECTION 21. Sections 22.07 and 71.03, Alcoholic Beverage
15-1 Code, are repealed.
15-2 SECTION 22. This Act takes effect September 1, 1997.
15-3 SECTION 23. The importance of this legislation and the
15-4 crowded condition of the calendars in both houses create an
15-5 emergency and an imperative public necessity that the
15-6 constitutional rule requiring bills to be read on three several
15-7 days in each house be suspended, and this rule is hereby suspended.