By Truan S.B. No. 376
75R7197 BEM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to eliminating certain alcoholic beverage permits.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 11.38(d), Alcoholic Beverage Code, is
1-5 amended to read as follows:
1-6 (d) The following are exempt from the fee authorized in this
1-7 section:
1-8 (1) [agent's,] airline beverage, passenger train
1-9 beverage, industrial, carrier's, private carrier's, private club
1-10 registration, local cartage, storage, and temporary wine and beer
1-11 retailer's permits;
1-12 (2) a wine and beer retailer's permit issued for a
1-13 dining, buffet, or club car; and
1-14 (3) a mixed beverage permit during the three-year
1-15 period following the issuance of the permit.
1-16 SECTION 2. Section 11.40, Alcoholic Beverage Code, is
1-17 amended to read as follows:
1-18 Sec. 11.40. NOTICE TO COUNTY JUDGE. The commission shall
1-19 give notice of all permit applications to the county judge of the
1-20 county in which the applicant's place of business is located,
1-21 unless the county judge waives the required notice in writing.
1-22 Notice is not required in the case of an application for a wine and
1-23 beer retailer's, wine and beer retailer's off-premise, temporary
1-24 wine and beer retailer's, carrier's, private carrier's, airline
2-1 beverage, industrial, [agent's,] manufacturer's agent's, bonded
2-2 warehouse, or storage permit.
2-3 SECTION 3. Section 36.02, Alcoholic Beverage Code, is
2-4 amended to read as follows:
2-5 Sec. 36.02. FEE. The annual state fee for a manufacturer's
2-6 agent's permit is $25 [$10].
2-7 SECTION 4. Section 36.04, Alcoholic Beverage Code, is
2-8 amended to read as follows:
2-9 Sec. 36.04. RELATIONSHIP BETWEEN MANUFACTURER'S AGENT AND
2-10 CERTAIN [INELIGIBILITY FOR AGENT'S] PERMIT HOLDERS. A holder of a
2-11 manufacturer's agent's permit may not be an employee of the holder
2-12 of a wholesaler's, winery, or wine bottler's [issued an agent's]
2-13 permit.
2-14 SECTION 5. Section 73.01, Alcoholic Beverage Code, is
2-15 amended to read as follows:
2-16 Sec. 73.01. AUTHORIZED ACTIVITIES. Subject to the
2-17 limitations imposed in Section 73.011 of this code or elsewhere in
2-18 this code, the holder of an agent's beer license, acting as an
2-19 employee or representative of a licensed manufacturer of beer
2-20 located inside or outside the state [or as an employee or
2-21 representative of a licensed distributor], may:
2-22 (1) promote the sale of beer through methods such as
2-23 solicitation, display, advertising, and personal contact with
2-24 licensed retailers of beer and their agents, servants, and
2-25 employees, and with consumers of beer; and
2-26 (2) sell beer and offer it for sale.
2-27 SECTION 6. Sections 73.02(a) and (c), Alcoholic Beverage
3-1 Code, are amended to read as follows:
3-2 (a) The annual state fee for an agent's beer license is $25
3-3 [$10].
3-4 (c) No manufacturer [or distributor] may pay the license fee
3-5 for any person or reimburse any person for the payment of the fee.
3-6 SECTION 7. Section 73.04, Alcoholic Beverage Code, is
3-7 amended to read as follows:
3-8 Sec. 73.04. QUALIFICATION FOR LICENSE. The commission shall
3-9 not issue an agent's beer license to a person unless it is shown to
3-10 the satisfaction of the commission that the applicant is employed
3-11 or has good prospects for employment as agent or representative of
3-12 a manufacturer [or distributor].
3-13 SECTION 8. Section 73.06, Alcoholic Beverage Code, is
3-14 amended to read as follows:
3-15 Sec. 73.06. EMPLOYMENT OF UNLICENSED AGENT PROHIBITED. No
3-16 manufacturer [or distributor] may use or be the beneficiary of the
3-17 services of any person to carry on the activities specified in
3-18 Section 73.01 if the person [he] does not hold an agent's beer
3-19 license and is not covered by the grace period provided by Section
3-20 73.05 of this code.
3-21 SECTION 9. Section 73.07, Alcoholic Beverage Code, is
3-22 amended to read as follows:
3-23 Sec. 73.07. EMPLOYMENT OF AGENT WHOSE LICENSE HAS BEEN
3-24 SUSPENDED OR CANCELLED. (a) No manufacturer [or distributor] may
3-25 employ or continue to employ in any capacity a person whose agent's
3-26 beer license has been suspended by the commission during the period
3-27 of suspension.
4-1 (b) No manufacturer [or distributor] may employ or continue
4-2 to employ in any capacity a person whose agent's beer license has
4-3 been cancelled for cause by the commission within one year after
4-4 the date of the cancellation.
4-5 SECTION 10. Section 73.11, Alcoholic Beverage Code, is
4-6 amended to read as follows:
4-7 Sec. 73.11. SUSPENSION OR CANCELLATION OF LICENSE. An
4-8 agent's beer license may be suspended or cancelled by the
4-9 commission for a violation of any rule or regulation of the
4-10 commission [or for any of the reasons a manufacturer's or
4-11 distributor's license may be suspended or cancelled]. The same
4-12 procedure applicable to the suspension or cancellation of a
4-13 [manufacturer's or] distributor's license shall be followed in the
4-14 suspension or cancellation of an agent's beer license.
4-15 SECTION 11. Section 102.06, Alcoholic Beverage Code, is
4-16 amended to read as follows:
4-17 Sec. 102.06. RELATIONSHIP BETWEEN [AGENT OR] MANUFACTURER'S
4-18 AGENT AND PACKAGE STORE. No employee of a wholesaler's, winery, or
4-19 wine bottler's permit or holder of a [an agent's or] manufacturer's
4-20 agent's permit may directly or indirectly have an interest in a
4-21 package store permit or wine only package store permit or be
4-22 residentially domiciled with a person who has a financial interest
4-23 in a package store permit or wine only package store permit.
4-24 SECTION 12. Subchapter A, Chapter 102, Alcoholic Beverage
4-25 Code, is amended by adding Section 102.21 to read as follows:
4-26 Sec. 102.21. WHOLESALER'S OR DISTRIBUTOR'S AGENTS. (a) The
4-27 holder of a permit, excluding a local distributor's permit or any
5-1 type of retailer's permit, who is authorized to sell liquor to
5-2 retail dealers in this state may authorize an employee or
5-3 representative of the holder to serve as an agent for the holder.
5-4 The agent may solicit and take orders for the sale of liquor from
5-5 authorized permit holders. Except as provided by Section 102.02,
5-6 the agent may not transport liquor as a free sample. The agent may
5-7 transport or display empty sample containers.
5-8 (b) An employee or representative of a licensed distributor
5-9 may, on behalf of the distributor:
5-10 (1) promote the sale of beer through methods including
5-11 solicitation, display, advertising, and personal contact with
5-12 consumers of beer and licensed beer retailers and the retailer's
5-13 agents, servants, and employees; and
5-14 (2) sell beer and offer beer for sale to licensed beer
5-15 retailers.
5-16 (c) A wholesaler's or distributor's agent who solicits and
5-17 takes orders for the sale of alcoholic beverages may not represent
5-18 that the agent is the agent of any person other than the wholesaler
5-19 or distributor who employs the agent.
5-20 (d) An agent for a manufacturer or distributor may not make
5-21 a representation, solicitation, or offer that the manufacturer or
5-22 distributor is prohibited from making under this code.
5-23 (e) Each agent engaged in the activities described by
5-24 Subsections (a) and (b) must be issued an identification card by
5-25 the permit or license holder the agent represents. The agent shall
5-26 present the identification card when acting as the holder's agent.
5-27 SECTION 13. Section 106.09(d), Alcoholic Beverage Code, is
6-1 amended to read as follows:
6-2 (d) The fact that a person is 18, 19, or 20 years of age is
6-3 not a ground for refusal of an original or renewal [permit or]
6-4 license issued under Chapter [35 or] 73 of this code and does not
6-5 preclude a person from accepting employment as a wholesaler's or
6-6 distributor's agent as described by Section 102.21, provided that
6-7 the licensed or employed [such a] person [to whom a permit or
6-8 license is issued] may carry out the activities authorized by this
6-9 code [those chapters] only while in the actual course and scope of
6-10 the person's employment.
6-11 SECTION 14. Section 109.53, Alcoholic Beverage Code, is
6-12 amended to read as follows:
6-13 Sec. 109.53. CITIZENSHIP OF PERMITTEE; CONTROL OF PREMISES;
6-14 SUBTERFUGE OWNERSHIP; ETC. No person who has not been a citizen of
6-15 Texas for a period of one year immediately preceding the filing of
6-16 the person's [his] application therefor shall be eligible to
6-17 receive a permit under this code. No permit except a brewer's
6-18 permit, and such other licenses and permits as are necessary to the
6-19 operation of a brewer's permit, shall be issued to a corporation
6-20 unless the same be incorporated under the laws of the state and
6-21 unless at least 51 percent of the stock of the corporation is owned
6-22 at all times by citizens who have resided within the state for a
6-23 period of one year and who possess the qualifications required of
6-24 other applicants for permits; provided, however, that the
6-25 restrictions contained in the preceding clause shall not apply to
6-26 domestic or foreign corporations that were engaged in the legal
6-27 alcoholic beverage business in this state under charter or permit
7-1 prior to August 24, 1935. Partnerships, firms, and associations
7-2 applying for permits shall be composed wholly of citizens
7-3 possessing the qualifications above enumerated. Any corporation
7-4 (except carrier) holding a permit under this code which shall
7-5 violate any provisions hereof, or any rule or regulation
7-6 promulgated hereunder, shall be subject to forfeiture of its
7-7 charter and it shall be the duty of the attorney general, when any
7-8 such violation is called to the attorney general's [his] attention,
7-9 to file a suit for such cancellation in a district court of Travis
7-10 County. Such provisions of this section as require Texas
7-11 citizenship or require incorporation in Texas shall not apply to
7-12 the holders of [agent's,] industrial, medicinal, and carrier's
7-13 permits. No person shall sell, warehouse, store or solicit orders
7-14 for any liquor in any wet area without first having procured a
7-15 permit of the class required for such privilege, or consent to the
7-16 use of or allow his permit to be displayed by or used by any person
7-17 other than the one to whom the permit was issued. It is the intent
7-18 of the legislature to prevent subterfuge ownership of or unlawful
7-19 use of a permit or the premises covered by such permit; and all
7-20 provisions of this code shall be liberally construed to carry out
7-21 this intent, and it shall be the duty of the commission or the
7-22 administrator to provide strict adherence to the general policy of
7-23 preventing subterfuge ownership and related practices hereinafter
7-24 declared to constitute unlawful trade practices. No applicant for
7-25 a package store permit or a renewal thereof shall have authority to
7-26 designate as "premise" and the commission or administrator shall
7-27 not approve a lesser area than that specifically defined as
8-1 "premise" in Section 11.49(a) of this code. Every permittee shall
8-2 have and maintain exclusive occupancy and control of the entire
8-3 licensed premises in every phase of the storage, distribution,
8-4 possession, and transportation and sale of all alcoholic beverages
8-5 purchased, stored or sold on the licensed premises. Any device,
8-6 scheme or plan which surrenders control of the employees, premises
8-7 or business of the permittee to persons other than the permittee
8-8 shall be unlawful. No minor, unless accompanied by the minor's
8-9 [his or her] parent, guardian, adult spouse [husband or adult
8-10 wife], or other adult person into whose custody the minor [he or
8-11 she] has been committed for the time by some court, shall knowingly
8-12 be allowed on the premises of the holder of a package store permit.
8-13 The prohibition against the presence of a minor on the premises of
8-14 the holder of a package store permit does not apply to the presence
8-15 on the premises of the holder or a person lawfully employed by the
8-16 holder. Any package store permittee who shall be injured in the
8-17 permittee's [his] business or property by another package store
8-18 permittee by reason of anything prohibited in this section may
8-19 institute suit in any district court in the county wherein the
8-20 violation is alleged to have occurred to require enforcement by
8-21 injunctive procedures and/or to recover threefold the damages [by
8-22 him] sustained by the permittee; plus costs of suit including a
8-23 reasonable attorney's fee. The provisions prohibiting the
8-24 licensing of only a portion of a building as premise for a package
8-25 store permit shall not apply to hotels as already defined in this
8-26 code.
8-27 SECTION 15. Section 204.01(b), Alcoholic Beverage Code, is
9-1 amended to read as follows:
9-2 (b) No bond is required of a holder of a mixed beverage,
9-3 private club registration, carriers, local cartage, wine and beer
9-4 retailers, nonresident seller's, or manufacturer's agent's[, or
9-5 agent's] permit.
9-6 SECTION 16. Chapter 35, Alcoholic Beverage Code, is
9-7 repealed.
9-8 SECTION 17. This Act takes effect September 1, 1997.
9-9 SECTION 18. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.