By: Hochberg H.B. No. 2605

A BILL TO BE ENTITLED

AN ACT

relating to licensing or permitting of an alcoholic beverage business or establishment.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter B, Chapter 5, Alcoholic Beverage Code, is amended by adding Section 5.436 to read as follows: Sec. 5.436 TEMPORARY ORDERS DURING CONTESTED CASES (a) For any case conducted before the State Office of Administrative Hearings or a County Judge acting under the authority of 61.32 of this code relating to the granting, cancellation or suspension of a license or permit the hearing officer shall, after notice and hearing, enter such orders binding the conduct of the parties to the hearing, including the conduct of an alcoholic beverage business or establishment owned or operated by a party, as are necessary to protect the public health, safety and welfare and to insure ongoing compliance with the provisions of this code and the rules of the commission.

(b) The hearings officer may enter orders under this section sua sponte or on the application of any party.

(c) Hearings under this section shall be held not more than ten days after notice has been served on all interested parties. Failure to hold a hearing within the time mandated by this subsection shall not, however, invalidate any order issued under this section.

(d) In the event an order issued under this section is violated by any party the hearing officer, after notice and hearing, shall impose such sanctions as are necessary to secure compliance with orders issued under this section, protection of the public health, safety and welfare and ongoing compliance with the provisions of this code and the rules of the commission. Sanctions imposed under this subsection may include imposition of civil fines, or cancellation or suspension of a license or permit issued under this code.

(e) Orders issued under this section shall be effective during the pendency of the case before the hearing officer and any subsequent appeal of that case.

(f) Applicants for orders under this section shall not be required to post security for costs in connection with that application or any hearing conducted as a result of that application.

SECTION 2. Section 11.41, Alcoholic Beverage Code, is amended by amending Subsection (a) to read as follows: (a) When a person applies for a permit, the commission or administrator may give due consideration to the recommendations of the state senator, state representative, mayor, the city council member or commissioner who represents the area in question, chief of police, city marshal, or city attorney of the city or town in which the premises sought to be licensed are located and of the county judge, the county commissioner who represents the area in question, sheriff, or county or district attorney of the county in which the premises sought to be licensed are located. If a protest against the issuance of a permit is made to the commission by any of these officers and it is found on a hearing or finding of facts that the issuance of the permit would be in conflict with the provisions of this code, the commission or administrator shall enter an order setting forth the reasons for refusal. A copy of the order shall be immediately mailed or delivered to the applicant.

SECTION 3. Section 11.46, Alcoholic Beverage Code, is amended by adding Subsection (d) to read as follows: (d) The commission or administrator may refuse to issue an original or renewal permit with or without a hearing if it has reasonable grounds to believe and finds that the place, building or premises for which the permit is sought was used by the applicant or others so as to constitute a nuisance as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code, at any time during the preceding twelve months. This section applies only to those permits authorizing the on-premises consumption of alcoholic beverages and does not apply to permittees holding food and beverage certificates.

SECTION 4. Section 11.61, Alcoholic Beverage Code, is amended by adding Subsection (j) to read as follows: (j) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal permit if it is found, after notice and hearing, that the permittee, as defined by subsection (a) of this section, used or, through the lack of reasonable care, allowed others to use the licensed premises so as to constitute a nuisance, as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code, or that the permittee violated any order issued under Section 5.436 of this code. The district or county attorney of the county or the city attorney of the city in which the property may be located may provide information to the commission indicating that the applicant has, or can reasonably be expected to, maintain the licensed premises so as to constitute a common nuisance as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code. The commission shall consider such information, and when such information is sufficient, use it as grounds to suspend or cancel a permit. This section applies only to those permits authorizing the on-premises consumption of alcoholic beverages and does not apply to permittees holding food and beverage certificates.

SECTION 5. Section 11.64, Alcoholic Beverage Code, is amended by amending Subsection (a) to read as follows: (a) When the commission or administrator is authorized to suspend a permit or license under this code, the commission or administrator shall give the permittee or licensee the opportunity to pay a civil penalty rather than have the permit or license suspended, unless the basis for the suspension is a violation of Section 11.61(b)(14), 11.61(b)(7), 11.61(j), 22.12, 28.11, 61.71(a)(5), 61.71(a)(6), 61.71(a)(17),61.71(l), 61.74(a)(14), 69.13, 71.09, 101.63, 106.03, 106.06, or 106.15 or an offense relating to prostitution or gambling, in which case the commission or administrator shall determine whether the permittee or licensee may have the opportunity to pay a civil penalty rather than have the permit or license suspended. The commission shall adopt rules addressing when suspension may be imposed pursuant to this section without the opportunity to pay a civil penalty. In adopting rules under this subsection, the commission shall consider the type of license or permit held, the type of violation, any aggravating or ameliorating circumstances concerning the violation, and any past violations of this code by the permittee or licensee. In cases in which a civil penalty is assessed, the commission or administrator shall determine the amount of the penalty. The amount of the civil penalty may not be less than $150 or more than $25,000 for each day the permit or license was to have been suspended. If the licensee or permittee does not pay the penalty before the sixth day after the commission or administrator notifies him of the amount, the commission or administrator shall impose the suspension.

SECTION 6. Subchapter C, Chapter 11, Alcoholic Beverage Code, is amended by adding Section 11.642 to read as follows: § 11.642 ADDITIONAL CONDITIONS ON LICENSEES AND PERMITTEES. (a) The commission, or administrator may, after notice and hearing, issue orders imposing such additional conditions on licensees and permittees as are reasonably necessary to abate a nuisance as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code and to secure ongoing compliance with the provisions of this code and the rules of the commission.

(b) The commission or administrator may cancel or suspend a license or permit for up to sixty days for violation of any order issued under subsection (a) above. The commission or administrator shall determine whether the licensee or permittee may have the opportunity to pay a civil penalty rather than have the license or permit suspended.

(c) This section only applies to licenses and permits authorizing the on-premises consumption of alcoholic beverages and does not apply to those licensees and permittees who hold food and beverage certificates.

SECTION 7. Section 61.32, Alcoholic Beverage Code, is amended by adding Subsection (d), to read as follows: (d) In connection with applications to sell alcoholic beverages for on-premises consumption, except for those applications that also include food and beverage certificates, the district or county attorney of the county or the city attorney of the city in which the property may be located, may provide information to the county judge indicating that the applicant has, or can reasonably be expected to, maintain the licensed premises so as to constitute a common nuisance as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code. The county judge shall consider such information, and when such information is sufficient, use it as grounds to deny an application.

SECTION 8. Section 61.42, Alcoholic Beverage Code, is amended by adding Subsection (d) to read as follows: (d) The county judge, commission, or administrator shall refuse to approve or issue an original or renewal license with or without a hearing of a retail dealer's on-premise license if it has reasonable grounds to believe and finds that the place, building or premises for which the license is sought was used by the applicant or other to as to constitute a nuisance, as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code, at any time during the preceding twelve months.

SECTION 9. Section 61.71, Alcoholic Beverage Code, is amended by adding Subsection (l), to read as follows: (l) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal retail dealer's on-premise license if it is found, after notice and hearing, that the licensee used or, through lack of reasonable care, allowed others to use the licensed premises so as to constitute a nuisance, as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code, or that the licensee has violated any order issued under Section 5.436 of this code. The district or county attorney of the county or the city attorney of the city in which the property may be located may provide information to the commission indicating that the applicant has, or can reasonably be expected to, maintain the licensed premises so as to constitute a common nuisance as defined by Chapter 125, Civil Practices and Remedies Code or Section 101.70 of this code. The commission shall consider such information, and when such information is sufficient, use it as grounds to suspend or cancel a license.

SECTION 10. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.