S.B. No. 1380
AN ACT
relating to alcoholic beverage industry sponsorship and alcoholic
beverage sale and consumption 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 subchapter, including their
relations with the owners and operators of public entertainment
facilities. This subchapter expressly authorizes alcoholic
beverage distillers, manufacturers, distributors, and wholesalers,
except as provided by Section 108.74, to promote and sponsor events
and advertise alcoholic beverage brands and products at public
entertainment facilities without establishing unlawful intertier
relations, including with retail permittees operating at those
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 who:
(A) has a written concession agreement from the
owner, operator, or lessee of a public entertainment facility;
(B) receives no monetary benefit, directly or
indirectly, by any scheme or device or in any form or degree from
the alcoholic beverage industry including a benefit in the form of
capital improvements, furniture, fixtures, or equipment, unless
otherwise authorized by this code or commission rules; and
(C) is not owned, in whole or in part, by the
public entertainment facility, or a subsidiary, agent, manager, or
company managing the facility, and who does not own, in whole or in
part, or manage the public entertainment facility.
(2) "Public entertainment facility" means an arena,
stadium, automobile race track, 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, nationally
sanctioned automobile racing, or entertainment events. The term
does not include a facility the primary purpose of which is the sale
of food or alcoholic beverages, including a bar, nightclub,
restaurant, hotel, bowling alley, 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
property on which a public entertainment facility and a licensed or
permitted premises are located and related surrounding property.
(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, marketing services, or
other materials indicating participation in or sponsorship of all
or part of a public entertainment facility or an event or venue at a
public entertainment facility, including the sponsorship or naming
of all or part of the facility or event, wherever located, whether
indoor or outdoor, including billboards, awnings, and electric
signs, however manufactured, comprising whatever materials, and
however disseminated, including by writing, printing, graphics,
newspaper, periodicals, radio, television, cable, Internet,
electronic, satellite, and other media or communication
modalities.
Sec. 108.74. EXCEPTION OF CERTAIN WHOLESALER FROM
APPLICATION OF THIS SUBCHAPTER. A person who holds a permit under
Chapter 19 and whose revenues from the sale of alcoholic beverages
are predominately obtained from the sale of distilled spirits and
wine may not enter into advertising, sponsorship, or promotional
agreements as authorized by Section 108.75.
Sec. 108.75. ADVERTISING AND PROMOTION IN PUBLIC
ENTERTAINMENT FACILITY. (a) A member of the distiller,
manufacturing, distributor, or wholesaler tier may promote,
sponsor, or advertise an entertainment event or venue or promote or
advertise an alcoholic beverage brand or product at a public
entertainment facility if the alcoholic beverage promoted, sold, or
served at the event, venue, or facility is furnished by an
independent concessionaire.
(b) An independent concessionaire may not receive direct
monetary benefit from advertising, promotional, or sponsorship
revenues generated by operation of a public entertainment facility.
A member of the manufacturing or distributing tier may not,
directly or indirectly through the owner or operator of a public
entertainment facility, furnish, give, rent, lend, or sell any
equipment, fixtures, or supplies to an independent concessionaire.
A public entertainment facility owner or operator or a member of the
distiller, manufacturing, distributor, or wholesaler tier may not
directly or indirectly control the quantity or brand of alcoholic
beverages bought or sold by an independent concessionaire. An
independent concessionaire must enter into a written concession
agreement with an owner, lessee, or operator of a public
entertainment facility.
(c) A member of the distiller, manufacturing, distributor,
or wholesaler tier who has entered into an advertising,
promotional, or sponsorship agreement may provide sponsorship
signs at a public entertainment facility property and as otherwise
authorized in this code and commission rules.
(d) An independent concessionaire who has entered into a
concessionaire agreement under this subchapter may place
sponsorship signs at, in, or on public entertainment facility
property.
(e) The owner or operator of a public entertainment facility
who has entered into a concessionaire agreement and a sponsorship
agreement under this subchapter shall not be precluded from placing
and displaying sponsorship signs, as otherwise permitted by law,
provided by sponsoring members of the distiller, manufacturing,
distributor, or wholesaler tier, at, in, or on an independent
concessionaire's venues at a public entertainment facility
property, including the area where alcoholic beverages are
displayed, served, or poured.
(f) Nothing in this subchapter shall limit the independent
concessionaire's right to place and display sponsorship and other
signs authorized under this code and commission rules.
(g) All advertising, promotional, sponsorship, and
concession agreements authorized by this subchapter shall contain
an affirmative provision disavowing the right of any party to
engage in conduct prohibited by this subchapter.
Sec. 108.76. VIOLATION. The provision, placement, and use
of sponsorship signs as authorized by and in compliance with this
subchapter by members of the distiller, manufacturing,
distributor, or wholesaler tier, independent concessionaires, and
public entertainment facility owners and operators does not
constitute an illegal inducement, subterfuge, or a surrender of
exclusive control.
Sec. 108.77. COST OF ADVERTISEMENT, SPONSORSHIP, OR
PROMOTION. No part of the cost of an advertisement, sponsorship, or
promotion authorized by this subchapter may be charged to or paid by
a distributor or wholesaler, except as provided by Section 108.74,
unless the distributor or wholesaler:
(1) contracts directly with the owner or operator of
the public entertainment facility for the advertisement,
sponsorship, or promotion; or
(2) is a party to the advertising, sponsorship, or
promotion agreement between a member of the manufacturing tier and
the owner or operator of the public entertainment facility.
Sec. 108.78. CONFIDENTIALITY. Any concessionaire,
sponsorship, advertisement, or promotional agreement, or related
agreement and exhibits to such an agreement, entered into,
submitted, filed, or requested by the administrator or commission
is deemed confidential under Section 5.48(b).
Sec. 108.79. OPTIONAL PREAPPROVAL PROCESS. (a) Subject to
the terms of the relevant agreement, a permittee or licensee may by
certified mail, return receipt requested, submit to the
administrator in writing the permittee's or licensee's original or
amended advertising, promotional, sponsorship, or concessionaire
agreement relating to a public entertainment facility, requesting
the administrator's approval.
(b) Not later than the 30th day after the date the
administrator receives the request for preapproval under this
section, the administrator shall notify the permittee or licensee
in writing, by certified mail, return receipt requested, whether
the administrator approves, conditionally approves, or disapproves
the submission. If the administrator does not provide the
notification in that time and the permittee or licensee does not
agree to a timely and reasonable written request for an extension by
the administrator giving the reason for the request, the agreement
is considered approved as submitted.
(c) If the administrator conditionally approves or
disapproves a submission under Subsection (b), the administrator
shall specify in the notice provided under that subsection the
basis for the administrator's determination, referencing any
specific provisions of this code or other law involved in the
determination and any necessary and reasonable actions the
permittee or licensee may take to obtain approval of the
submission.
(d) On receipt of the administrator's conditional approval
or disapproval, the permittee or licensee may:
(1) revise and resubmit the agreement in compliance
with the administrator's specific comments and instructions,
including any discussions between the administrator and permittee
or licensee to resolve the issues involved in the administrator's
determination; or
(2) contest the commission's or administrator's
determinations, acts, or omissions related to this subchapter and
engage in informal mediation to resolve the dispute regarding the
submission.
(e) A submission under Subsection (d)(1) is subject to the
approval period prescribed by Subsection (b) unless the
administrator and the permittee or licensee agree otherwise.
Sec. 108.80. JUDICIAL REVIEW. (a) If a permittee,
licensee, or other party to an agreement under this subchapter
alleges that the administrator is or has been, directly or
indirectly, unfairly, arbitrarily, capriciously, or wrongly
exercising or withholding the exercise of the administrator's
authority under Section 108.79, desires a declaration of rights
under this subchapter, or alleges threatened or actual damage or
injury arising out of a violation of this subchapter or any other
law relating to the process and rights provided by this subchapter,
the aggrieved party may bring suit in a district court in Travis
County:
(1) to require, contest, or suspend enforcement of any
act or omission by the administrator or commission; or
(2) concerning any administrative, regulatory, legal,
or judicial act or omission, including seeking mandatory and
prohibitory injunctive and extraordinary relief or declaratory
relief.
(b) The court in its discretion may allow the permittee,
licensee, or other party to an agreement to recover court costs and
reasonable attorney's fees incurred in the defense or prosecution
of the action.
Sec. 108.81. SPONSOR LIABILITY. A beverage distiller,
manufacturer, distributor, or wholesaler who sponsors an event at a
public entertainment facility or on public entertainment facility
property, or who advertises or displays sponsorship signs in
connection with such an event or facility or property, shall not be
liable solely because of such sponsorship, advertisement, or
display of sponsorship signs for any personal injury, death, or
property damage occurring at such a facility or property or as a
result of the operation or condition of such facility or property or
because of any tort committed by any other party at or in connection
with such event, facility, or property.
SECTION 2. Chapter 105, Alcoholic Beverage Code, is amended
by adding Section 105.07 to read as follows:
Sec. 105.07. HOURS OF SALE AND CONSUMPTION: SPORTS VENUE.
(a) In this section, "sports venue" means a public entertainment
facility property, as defined by Section 108.73, that is primarily
designed and used for live sporting events.
(b) Notwithstanding any other provision of this code, in
addition to any other period during which the sale and consumption
of alcohol is authorized under this code:
(1) a licensed or permitted premises located in a
sports venue may sell alcoholic beverages between 10 a.m. and noon;
(2) a licensed or permitted premises located in a
public entertainment facility that has provisions for overnight
camping may allow a person to bring an alcoholic beverage onto the
premises, consume the beverage on the premises, and remove the
beverage from the premises; and
(3) a person may consume alcoholic beverages at a
sports venue between 10 a.m. and noon.
SECTION 3. (a) Except as provided by Subsection (b) of
this section:
(1) this Act supersedes 16 T.A.C. Section 45.100(b) in
its entirety as it existed on the effective date of this Act; and
(2) to the extent of any conflict between 16 T.A.C.
Section 45.100 and the provisions of Subchapter C, Chapter 108,
Alcoholic Beverage Code, as added by this Act, the provisions of
Subchapter C shall prevail.
(b) An agreement entered into before April 15, 2003, that is
in compliance with 16 T.A.C. Section 45.100, as that section
existed on January 1, 2003, shall be deemed in compliance with 16
T.A.C. Section 45.100 and Subchapter C, Chapter 108, Alcoholic
Beverage Code, as added by this Act. An agreement entered into
before April 15, 2003, that is authorized under the provisions of
Subchapter C, Chapter 108, Alcoholic Beverage Code, as added by
this Act, may not be deemed to violate 16 T.A.C. Section 45.100 to
the extent that section conflicts with or is superseded by
Subchapter C.
SECTION 4. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1380 passed the Senate on
April 25, 2003, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 20, 2003, by a
viva-voce vote.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1380 passed the House, with
amendments, on May 16, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor