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2003S0591-1 03/12/03
By: Driver H.B. No. 2880
A BILL TO BE ENTITLED
AN ACT
relating to alcoholic beverage industry sponsorship at public
entertainment facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 108, Alcoholic Beverage Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. INDUSTRY PUBLIC ENTERTAINMENT FACILITIES ACT
Sec. 108.71. PURPOSE. This subchapter governs the
statutory duties, rights, and relations among licensees and
permittees operating under this code, including their relations
with the owners and operators of public entertainment facilities.
This subchapter expressly authorizes alcoholic beverage
distillers, manufacturers, and wholesale distributors to promote
and sponsor events and advertise alcoholic beverage brands and
products at public entertainment facilities provided the
distillers, manufacturers, or wholesale distributors do not
establish unlawful relations with retail permittees operating at
such facilities.
Sec. 108.72. SHORT TITLE. This subchapter may be cited as
the "Industry Public Entertainment Facilities Act."
Sec. 108.73. DEFINITIONS. In this subchapter:
(1) "Independent concessionaire" means a licensed or
permitted member of the retail tier or a holder of a private club
permit, caterer's permit, or food and beverage certificate.
(2) "Public entertainment facility" means an arena,
stadium, amphitheater, auditorium, theater, civic center,
convention center, or similar facility that is primarily designed
and used for live artistic, theatrical, cultural, educational,
charitable, musical, sporting, or entertainment events. The term
does not include a facility the primary purpose of which is the sale
of food or alcoholic beverages such as a bar, night club,
restaurant, pool hall, or dance hall, or a facility that derives 75
percent or more of the facility's annual gross revenue from the
on-premise sale of alcoholic beverages.
(3) "Public entertainment facility property" means
any licensed or permitted premises and related surrounding uses.
(4) "Sponsorship signs" means any manner of
advertising, promotional, or sponsorship signage, or any
representation, device, display, regalia, insignia, indicia,
design, slogan, trade name, brand name, product name, permittee or
licensee name, advertising specialties, or such other materials
indicating participation in or sponsorship of all or part of a
public entertainment facility, event, or venue in connection with
or pertaining thereto, wherever located, whether indoor or outdoor,
including billboards, awnings, electric signs, or however
manufactured or comprising whatever materials, and however
disseminated including via written, printed, graphic, radio,
television, cable, internet, electronic, satellite, or other media
or communication modalities.
Sec. 108.74. ADVERTISING AND PROMOTION IN PUBLIC
ENTERTAINMENT FACILITY. (a) A member of the manufacturing and
wholesale distributors tiers may promote and sponsor an
entertainment event or advertise and promote an alcoholic beverage
brand or product at a public entertainment facility, if the
alcoholic beverage promoted, sold, or served at such event or
facility is furnished by an independent concessionaire.
(b) The independent concessionaire may not receive direct
monetary benefit from advertising, promotional, or sponsorship
revenues generated by operation of the public entertainment
facility. The public entertainment facility owner, operator, or
upper tier members may not directly or indirectly control the
quantity or brand of alcoholic beverages bought or sold by the
independent concessionaire. The independent concessionaire must
enter into a written concession agreement with the owner, lessee,
or operator of the public entertainment facility.
(c) Notwithstanding any provision in this code or the
commission rules to the contrary, a member of the manufacturing and
wholesale tiers who has entered into an advertising, promotional or
sponsorship agreement may provide, and a concessionaire who has
entered into a concessionaire agreement under this subchapter may
place sponsorship signs at, in, within, and on a public
entertainment facility property. To the extent of any conflict
between this subchapter and any other provision of this code or
other state law, or of commission rules, this subchapter controls.
Sec. 108.75. VIOLATION. If an alcoholic beverage brand or
product is the subject of an advertising, promotional, or
sponsorship event or agreement concerning a brand or product sold
during a public entertainment event or at a public entertainment
facility and the aggregate percentage of such alcoholic beverage
product or brand sold at the entire public entertainment facility
exceeds by more than five percent the aggregate percentage share of
the same brand or product sold during the prior calendar year within
the county in which the public entertainment facility is located,
such excess percentage sales may constitute prima facie but
rebuttable evidence of a violation of Sections 102.01, 102.04, and
102.07, Alcoholic Beverage Code; provided, however, that the
computation of excess percentage sales may exclude sales made on
those occasions when a private party uses such facility and orders
specific alcoholic beverages.
Sec. 108.76. COST OF ADVERTISEMENT, SPONSORSHIP, OR
PROMOTION. Notwithstanding any provision of this subchapter or any
other provision of this code, a part of the cost of an
advertisement, sponsorship, or promotion authorized by this
subchapter may not be charged to or paid, directly or indirectly, by
the holder of a wholesale permit, general class B wholesaler's
permit, local class B wholesaler's permit, local distributor's
permit, general distributor's license, or local distributor's
license, except through the price paid by the holder of the permit
or license for products purchased from the permit or license
holder's supplier.
Sec. 108.77. SUBMISSION OF AGREEMENT; CONFIDENTIALITY.
(a) An advertising, promotional, sponsorship, or concession
agreement made on or after September 1, 2003, by a member of the
alcoholic beverage industry under this subchapter must be filed
with the office of the commission or administrator not later than
the 60th day after the execution of the agreement, or any amendments
to the agreement.
(b) An advertising, promotional, sponsorship, or concession
agreement as described by this subchapter that is in effect on
September 1, 2003, must be filed with the commission or
administrator not later than the 180th day after that date;
provided, however, that a failure to file the agreement within the
180-day period for good cause shown will not subject the parties to
such agreement to legal liability.
(c) An agreement filed under this subchapter is
confidential under Section 5.48(b).
Sec. 108.78. APPROVAL OR DENIAL OF AGREEMENT; JUDICIAL
REVIEW. (a) Not later than the 10th business day after a party
applies for approval by filing with the commission or administrator
under Section 108.77(a), the proposed or final concession,
sponsorship, promotion, or advertising agreement the commission or
administrator shall notify the applicant in writing of the
approval, disapproval, or conditional approval of all tendered
agreements. If the commission or administrator does not provide a
written response within the 10-day period, the agreement is deemed
approved for all purposes.
(b) If an agreement is disapproved or conditionally
approved under Subsection (a), the commission or administrator
shall, not later than the 10th business day after the disapproval or
conditional approval, specify in writing the basis for its
determination, referencing specific code provisions or commission
rules violated and any necessary deletions or amendments required
to effect compliance.
(c) If on the applicant's resubmission to the commission or
administrator, the approval is directly or indirectly denied or
withheld or the applicant contests the commission's or
administrator's determinations, acts, or omissions concerning this
subchapter, then notwithstanding anything to the contrary in this
code, the commission rules, or Chapter 2001, Government Code, the
applicant or any party to the agreements at issue desiring a
declaration of rights, or alleging threatened or actual damage or
injury by violation of this subchapter, this code, commission
rules, or at law or in equity, shall be deemed to have exhausted all
administrative and other requirements and may bring suit in any
district court in any county in which the rights in this subchapter
are at issue, or a threatened or actual violation is alleged to have
occurred, to require, contest, or suspend enforcement, including by
injunctive relief, or may bring an action for declaratory relief.
The court in its discretion may allow the prevailing party to
recover its court costs and reasonable attorney's fees incurred in
the defense or prosecution of such action.
SECTION 2. This Act takes effect September 1, 2003.