87R2455 JES-F
By: Burrows H.B. No. 2119
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of restaurants and third-party food
delivery services, including the issuance of certain permits to
restaurants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.04, Alcoholic Beverage Code, is
amended by adding Subdivision (29) to read as follows:
(29) "Restaurant" means a business that:
(A) operates its own permanent food service
facility with commercial cooking equipment on its premises; and
(B) prepares and offers to sell multiple entrees
for consumption on or off the premises.
SECTION 2. Sections 25.13(a-1), (b-1), and (d), Alcoholic
Beverage Code, as effective September 1, 2021, are amended to read
as follows:
(a-1) A holder of a wine and malt beverage retailer's permit
that is a restaurant may be issued a food and beverage certificate
by the commission if the commission finds that the receipts from the
sale of alcoholic beverages by the permit holder at the location are
60 percent or less of the total receipts from the location.
(b-1) [The commission shall adopt rules requiring the
holder of a food and beverage certificate to assure that permanent
food service facilities for the preparation and service of multiple
entrees for consumption at the location are available at the
location.] The commission may exempt permittees who are
concessionaires in public entertainment venues such as sports
stadiums and convention centers from:
(1) the requirement that the permittee operate its own
permanent food service facility with commercial cooking equipment
on its premises; and
(2) the sales requirements under Subsection
[Subsections] (a-1) [and (b)].
(d) A certificate issued under this section expires on the
expiration of the primary wine and malt beverage retailer's permit.
A certificate may be canceled at any time, and the renewal of a
certificate may be denied, if the commission finds that the holder
of the certificate is in violation of Subsection (a-1) [or (b) or a
rule adopted under Subsection (b-1)]. On finding that the
permittee knowingly operated under a food and beverage certificate
while not complying with this section [or a rule adopted under
Subsection (b-1)], the commission may cancel or deny the renewal of
the permittee's wine and malt beverage retailer's permit. The
holder of a wine and malt beverage retailer's permit whose
certificate has been canceled or who is denied renewal of a
certificate under this subsection may not apply for a new
certificate until the day after the first anniversary of the date
the certificate was canceled or the renewal of the certificate was
denied.
SECTION 3. Sections 28.18(a-1), (b-1), and (e), Alcoholic
Beverage Code, are amended to read as follows:
(a-1) A holder of a mixed beverage permit that is a
restaurant may be issued a food and beverage certificate by the
commission if the commission finds that the receipts from the sale
of alcoholic beverages by the permit holder at the location are 60
percent or less of the total receipts from the location.
(b-1) [The commission shall adopt rules requiring the
holder of a food and beverage certificate to assure that permanent
food service facilities for the preparation and service of multiple
entrees for consumption at the location are available at the
location.] The commission may exempt permittees who are
concessionaires in public entertainment venues such as sports
stadiums and convention centers from:
(1) the requirement that the permittee operate its own
permanent food service facility with commercial cooking equipment
on its premises; and
(2) the sales requirements under Subsection
[Subsections] (a-1) [and (b)].
(e) A certificate issued under this section expires on the
expiration of the primary mixed beverage permit. A certificate may
be canceled at any time, and the renewal of a certificate may be
denied, if the commission finds that the holder of the certificate
is in violation of Subsection (a-1) [or (b) or a rule adopted under
Subsection (b-1)]. On finding that the permittee knowingly
operated under a food and beverage certificate while not complying
with this section [or a rule adopted under Subsection (b-1)], the
commission may cancel or deny the renewal of the permittee's mixed
beverage permit. A mixed beverage permit issued in an area where
the legal sale of mixed beverages was authorized by a local option
election under Section 501.035(b)(9), Election Code, is canceled by
operation of law if the food and beverage certificate is canceled or
is not renewed. The holder of a mixed beverage permit whose
certificate has been canceled or who is denied renewal of a
certificate under this subsection may not apply for a new
certificate until the day after the first anniversary of the date
the certificate was canceled or the renewal of the certificate was
denied.
SECTION 4. Sections 32.23(a-1), (b-1), and (e), Alcoholic
Beverage Code, are amended to read as follows:
(a-1) A holder of a private club registration permit that is
a restaurant may be issued a food and beverage certificate by the
commission if the commission finds that the receipts from the
service of alcoholic beverages by the permit holder at the location
are 60 percent or less of the total receipts from the location.
(b-1) [The commission shall adopt rules requiring the
holder of a food and beverage certificate to assure that permanent
food service facilities for the preparation and service of multiple
entrees for consumption at the location are available at the
location.] The commission may exempt permittees who are
concessionaires in public entertainment venues such as sports
stadiums and convention centers from:
(1) the requirement that the permittee operate its own
permanent food service facility with commercial cooking equipment
on its premises; and
(2) the sales requirements under Subsection
[Subsections] (a-1) [and (b)].
(e) A certificate issued under this section expires on the
expiration of the primary private club registration permit. A
certificate may be canceled at any time, and the renewal of a
certificate may be denied, if the commission finds that the holder
of the certificate is in violation of Subsection (a-1) [or (b) or a
rule adopted under Subsection (b-1)]. On finding that the
permittee knowingly operated under a food and beverage certificate
while not complying with this section [or a rule adopted under
Subsection (b-1)], the commission may cancel or deny the renewal of
the permittee's private club registration permit. The holder of a
private club registration permit whose certificate has been
canceled or who is denied renewal of a certificate under this
subsection may not apply for a new certificate until the day after
the first anniversary of the date the certificate was canceled or
the renewal of the certificate was denied.
SECTION 5. Sections 69.16(a-1), (b-1), and (d), Alcoholic
Beverage Code, are amended to read as follows:
(a-1) A holder of a retail dealer's on-premise license that
is a restaurant may be issued a food and beverage certificate by the
commission if the commission finds that the receipts from the sale
of alcoholic beverages by the license holder at the location are 60
percent or less of the total receipts from the location.
(b-1) [The commission shall adopt rules requiring the
holder of a food and beverage certificate to assure that permanent
food service facilities for the preparation and service of multiple
entrees for consumption at the location are available at the
location.] The commission may exempt licensees who are
concessionaires in public entertainment venues such as sports
stadiums and convention centers from:
(1) the requirement that the permittee operate its own
permanent food service facility with commercial cooking equipment
on its premises; and
(2) the sales requirements under Subsection
[Subsections] (a-1) [and (b)].
(d) A certificate issued under this section expires on the
expiration of the primary retail dealer's on-premise license. A
certificate may be canceled at any time, and the renewal of a
certificate may be denied, if the commission finds that the holder
of the certificate is in violation of Subsection (a-1) [or (b) or a
rule adopted under Subsection (b-1)]. On finding that the licensee
knowingly operated under a food and beverage certificate while not
complying with this section [or a rule adopted under Subsection
(b-1)], the commission may cancel or deny the renewal of the
licensee's retail dealer's on-premise license. The holder of a
retail dealer's on-premise license whose certificate has been
canceled or who is denied renewal of a certificate under this
subsection may not apply for a new certificate until the day after
the first anniversary of the date the certificate was canceled or
the renewal of the certificate was denied.
SECTION 6. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 114 to read as follows:
CHAPTER 114. THIRD-PARTY FOOD DELIVERY SERVICES
Sec. 114.0001. DEFINITIONS. In this chapter:
(1) "Mark" and "trade name" have the meanings assigned
by Section 16.001.
(2) "Restaurant" has the meaning assigned by Section
1.04, Alcoholic Beverage Code.
(3) "Third-party food delivery service" means a
website, mobile application, or other Internet-based service that
acts as an intermediary between consumers and multiple restaurants
not owned or operated by the service to arrange for the delivery of
food or beverages from those restaurants.
Sec. 114.0002. PROHIBITED ACTS. A third-party food
delivery service may not:
(1) arrange for the delivery of food or beverages from
a restaurant in this state unless the service has filed a
certificate of formation or registration with the secretary of
state;
(2) use a restaurant's mark or trade name in connection
with the service in a misleading way that suggests the restaurant
sponsors or endorses the service;
(3) alter a restaurant's pricing for a food or beverage
ordered from the restaurant on the service, except that the service
may charge additional fees for use of the service if the fees are
clearly expressed to the consumer as a separate charge from the
price of the food or beverage ordered from the restaurant; or
(4) charge a restaurant a fee in connection with the
service's delivery of food or beverages from that restaurant unless
the restaurant has agreed to pay a fee to the service under an
agreement under Section 114.0004.
Sec. 114.0003. REQUIREMENTS FOR SERVICE. A third-party
food delivery service shall:
(1) provide a consumer a clearly identified mechanism
for the consumer to express concerns or complaints directly to the
service regarding a delivery of food or beverages arranged through
the service; and
(2) remove a restaurant from the service not later
than the 10th day after the date the service receives a request from
the restaurant to be removed from the service if the service does
not have an agreement with the restaurant to provide the delivery
service.
Sec. 114.0004. TERMS OF AGREEMENT WITH RESTAURANT. (a) An
agreement between a third-party food delivery service and a
restaurant must:
(1) be in writing;
(2) expressly authorize the service to arrange for the
delivery of food or beverages from that restaurant; and
(3) clearly state each fee, including a commission or
other charge, that the restaurant will be required to pay or absorb
in connection with the service's delivery of food from that
restaurant.
(b) The agreement may not include any provision that
requires the restaurant to indemnify the third-party food delivery
service, including an employee or independent contractor of the
service, for claims or liabilities resulting from acts or omissions
of the service or of an employee or independent contractor of the
service.
(c) A provision in an agreement that violates Subsection (b)
is void and unenforceable.
Sec. 114.0005. PRIVATE CAUSE OF ACTION. (a) If a
third-party food delivery service violates Section 114.0002 or
114.0003, a restaurant aggrieved by the violation may bring an
action against the service for:
(1) injunctive relief; and
(2) damages in an amount equal to:
(A) the restaurant's actual damages arising from
the violation; or
(B) the service's profits arising from the
violation.
(b) If the court finds that the defendant committed the
violation knowingly or in bad faith, the court may award the
plaintiff:
(1) exemplary damages in an amount that is not more
than three times the sum of:
(A) the plaintiff's actual damages; and
(B) the defendant's profits arising from the
violation; and
(2) the plaintiff's reasonable attorney's fees.
SECTION 7. Subchapter D, Chapter 438, Health and Safety
Code, is amended by adding Section 438.0432 to read as follows:
Sec. 438.0432. DELIVERY SERVICE FOOD SAFETY ACCREDITATION.
(a) In this section, "third-party food delivery service" has the
meaning assigned by Section 114.0001, Business & Commerce Code.
(b) Notwithstanding Section 438.043, the department as
provided by this section may accredit an education program on basic
food safety for third-party food delivery service employees and
independent contractors who deliver food as authorized by Chapter
114, Business & Commerce Code.
(c) The executive commissioner shall by rule define the
training on basic food safety that must be included in a third-party
food delivery service course curriculum. The course length may not
exceed 30 minutes.
(d) An education program accredited under this section may
require a participant to achieve a passing score on an examination
to successfully complete the course for certification.
(e) An education program accredited under this section may
be provided through the Internet or a mobile application.
(f) The department or a local health authority may not
require a third-party food delivery service employee or independent
contractor to complete an education program accredited under this
section. A local health authority may not charge a fee to an
employee or contractor who provides proof of completion of an
education program accredited under this section.
SECTION 8. Chapter 250, Local Government Code, is amended
by adding Section 250.011 to read as follows:
Sec. 250.011. THIRD-PARTY FOOD DELIVERY SERVICES. (a) In
this section, "third-party food delivery service" has the meaning
assigned by Section 114.0001, Business & Commerce Code.
(b) Notwithstanding any other law, a municipality or county
may not adopt or enforce an ordinance or regulation that:
(1) applies requirements to a third-party food
delivery service that are more restrictive than the requirements
that apply to the service under Chapter 114, Business & Commerce
Code;
(2) affects the fees charged to a restaurant by a
third-party food delivery service; or
(3) affects the terms of an agreement between a
third-party food delivery service and a restaurant required under
Section 114.0004, Business & Commerce Code.
SECTION 9. The following sections of the Alcoholic Beverage
Code are repealed:
(1) Section 25.13(b), as effective September 1, 2021;
(2) Section 28.18(b);
(3) Section 32.23(b); and
(4) Section 69.16(b).
SECTION 10. Section 114.0004, Business & Commerce Code, as
added by this Act, applies only to an agreement entered into or
renewed on or after the effective date of this Act.
SECTION 11. This Act takes effect September 1, 2021.