BILL ANALYSIS
By: Hochberg
Licensing & Administrative Procedures
Committee Report (Substituted)
BACKGROUND AND PURPOSE
When a bar becomes a nuisance to its neighbors, sometimes it can take up to several years to address problems of illegal activity occurring when the responsible party is not taking steps to prevent it. Current law does not clearly allow for the Texas Alcoholic Beverage Commission to require that the license or permit holder of the bar take reasonable actions to abate a nuisance, with the risk of serious consequences if the nuisance is not abated. Even with evidence of drug sales, prostitution, gambling or murder, current law does not easily facilitate the Texas Alcoholic Beverage Commission suspending or canceling a license or permit when state intervention is needed to protect public safety and welfare.
C.S.H.B. 2605 gives the Texas Alcoholic Beverage Commission (Commission) and local authorities the tools necessary to bring about the cessation of a common nuisance at a licensed or permitted alcoholic establishment.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution.
ANALYSIS
C.S.H.B. 2605 creates a new chapter called "Common Nuisance" in the Alcoholic Beverage Code. The substitute defines the term "common nuisance" and the applicability of the chapter. The substitute allows district, county, or city attorneys or the state senator or state representative who represent the area in question to provide information to the commission, administrator or county judge that an applicant, license or permit holder is maintaining a common nuisance or will maintain or allow others to use the premises in a manner that constitutes a common nuisance.
C.S.H.B. 2605 allows the commission, administrator, or county judge to deny an original or renewal application of a license or a permit if the applicant or others have used the location in the last 12 months so as to constitute a common nuisance regardless of who controlled the property at the time the activity occurred. The substitute also allows for the suspension of not more than 60 days or cancellation of a license or a permit if the applicant or others have used the location so as to constitute a common nuisance. The substitute requires the commission or administrator to consider information from district, county, or city attorneys or the state senator or state representative, who represent the area in question, and if the commission or administrator finds the information sufficient to cancel or suspend a permit or license, the commission or administrator shall provide notice and hold a hearing to determine whether to suspend or cancel the permit or license. Notwithstanding Section 11.64, the commission or administrator may not allow a permit or license holder to pay a fine instead of having the permit or license suspended.
C.S.H.B. 2605 authorizes the commission, administrator, or county judge, after notice and hearing, to issue additional conditions reasonably necessary to abate the common nuisance and establishes certain penalties for a license or permit holder who violates an order to abate the common nuisance. The substitute also authorizes the commission, administrator, or county judge the authority to issue temporary orders, before holding a hearing, requiring the applicant, license or permit holder to abate the activities causing the nuisance if there is evidence showing that the reasonable likelihood that the nuisance does exist. The substitute defines the length of time during which the temporary order is in effect, defines who may issue a temporary order, establishes sanctions for a license or permit holder who violates an order, defines maximum amount of time between notice and hearing and defines who may not be required to pay for related court costs.
C.S.H.B. 2605 states the change in law, with respect to original or renewal license application, applies only to an application filed on or after the effective date of this Act.
EFFECTIVE DATE
Immediately, or, if the Act does not receive the necessary vote, the Act takes effect September 1, 2007.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The committee substitute is a council draft of the filed version of the bill and clarifies the procedures to address a common nuisance that occurs or may occur at places that have been licensed or permitted by the Commission or the appropriate authority for the sale of on-premise consumption of alcoholic beverages. The substitute creates a new chapter in the Alcoholic Beverage Code and clarifies that this chapter applies to a permitted or licensed establishment that authorizes the retail sale or service of alcoholic beverages for on-premises consumption. The substitute deletes language allowing the Commission to suspend or cancel a license or permit instead of paying a civil penalty if the violation is based on general welfare, health, peace, morals, safety and decency.