TX
Texas House Bill HB2119

Texas 2021 - 87th Regular

Texas House Bill HB2119 Compare Versions

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1-87R14334 JES-F
1+87R2455 JES-F
22 By: Burrows H.B. No. 2119
3- Substitute the following for H.B. No. 2119:
4- By: Thompson of Harris C.S.H.B. No. 2119
53
64
75 A BILL TO BE ENTITLED
86 AN ACT
97 relating to the regulation of restaurants and third-party food
10- delivery services, including the issuance of certain alcoholic
11- beverage certificates to restaurants.
8+ delivery services, including the issuance of certain permits to
9+ restaurants.
1210 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1311 SECTION 1. Section 1.04, Alcoholic Beverage Code, is
1412 amended by adding Subdivision (29) to read as follows:
1513 (29) "Restaurant" means a business that:
1614 (A) operates its own permanent food service
1715 facility with commercial cooking equipment on its premises; and
1816 (B) prepares and offers to sell multiple entrees
1917 for consumption on or off the premises.
20- SECTION 2. Section 25.13(a-1), Alcoholic Beverage Code, as
21- effective September 1, 2021, is amended to read as follows:
18+ SECTION 2. Sections 25.13(a-1), (b-1), and (d), Alcoholic
19+ Beverage Code, as effective September 1, 2021, are amended to read
20+ as follows:
2221 (a-1) A holder of a wine and malt beverage retailer's permit
23- may be issued a food and beverage certificate by the commission if:
24- (1) the permit holder is a restaurant; or
25- (2) the commission finds that the receipts from the
22+ that is a restaurant may be issued a food and beverage certificate
23+ by the commission if the commission finds that the receipts from the
2624 sale of alcoholic beverages by the permit holder at the location are
2725 60 percent or less of the total receipts from the location.
28- SECTION 3. Section 28.18(a-1), Alcoholic Beverage Code, is
29- amended to read as follows:
30- (a-1) A holder of a mixed beverage permit may be issued a
31- food and beverage certificate by the commission if:
32- (1) the permit holder is a restaurant; or
33- (2) the commission finds that the receipts from the
34- sale of alcoholic beverages by the permit holder at the location are
35- 60 percent or less of the total receipts from the location.
36- SECTION 4. Section 32.23(a-1), Alcoholic Beverage Code, is
37- amended to read as follows:
38- (a-1) A holder of a private club registration permit may be
39- issued a food and beverage certificate by the commission if:
40- (1) the permit holder is a restaurant; or
41- (2) the commission finds that the receipts from the
26+ (b-1) [The commission shall adopt rules requiring the
27+ holder of a food and beverage certificate to assure that permanent
28+ food service facilities for the preparation and service of multiple
29+ entrees for consumption at the location are available at the
30+ location.] The commission may exempt permittees who are
31+ concessionaires in public entertainment venues such as sports
32+ stadiums and convention centers from:
33+ (1) the requirement that the permittee operate its own
34+ permanent food service facility with commercial cooking equipment
35+ on its premises; and
36+ (2) the sales requirements under Subsection
37+ [Subsections] (a-1) [and (b)].
38+ (d) A certificate issued under this section expires on the
39+ expiration of the primary wine and malt beverage retailer's permit.
40+ A certificate may be canceled at any time, and the renewal of a
41+ certificate may be denied, if the commission finds that the holder
42+ of the certificate is in violation of Subsection (a-1) [or (b) or a
43+ rule adopted under Subsection (b-1)]. On finding that the
44+ permittee knowingly operated under a food and beverage certificate
45+ while not complying with this section [or a rule adopted under
46+ Subsection (b-1)], the commission may cancel or deny the renewal of
47+ the permittee's wine and malt beverage retailer's permit. The
48+ holder of a wine and malt beverage retailer's permit whose
49+ certificate has been canceled or who is denied renewal of a
50+ certificate under this subsection may not apply for a new
51+ certificate until the day after the first anniversary of the date
52+ the certificate was canceled or the renewal of the certificate was
53+ denied.
54+ SECTION 3. Sections 28.18(a-1), (b-1), and (e), Alcoholic
55+ Beverage Code, are amended to read as follows:
56+ (a-1) A holder of a mixed beverage permit that is a
57+ restaurant may be issued a food and beverage certificate by the
58+ commission if the commission finds that the receipts from the sale
59+ of alcoholic beverages by the permit holder at the location are 60
60+ percent or less of the total receipts from the location.
61+ (b-1) [The commission shall adopt rules requiring the
62+ holder of a food and beverage certificate to assure that permanent
63+ food service facilities for the preparation and service of multiple
64+ entrees for consumption at the location are available at the
65+ location.] The commission may exempt permittees who are
66+ concessionaires in public entertainment venues such as sports
67+ stadiums and convention centers from:
68+ (1) the requirement that the permittee operate its own
69+ permanent food service facility with commercial cooking equipment
70+ on its premises; and
71+ (2) the sales requirements under Subsection
72+ [Subsections] (a-1) [and (b)].
73+ (e) A certificate issued under this section expires on the
74+ expiration of the primary mixed beverage permit. A certificate may
75+ be canceled at any time, and the renewal of a certificate may be
76+ denied, if the commission finds that the holder of the certificate
77+ is in violation of Subsection (a-1) [or (b) or a rule adopted under
78+ Subsection (b-1)]. On finding that the permittee knowingly
79+ operated under a food and beverage certificate while not complying
80+ with this section [or a rule adopted under Subsection (b-1)], the
81+ commission may cancel or deny the renewal of the permittee's mixed
82+ beverage permit. A mixed beverage permit issued in an area where
83+ the legal sale of mixed beverages was authorized by a local option
84+ election under Section 501.035(b)(9), Election Code, is canceled by
85+ operation of law if the food and beverage certificate is canceled or
86+ is not renewed. The holder of a mixed beverage permit whose
87+ certificate has been canceled or who is denied renewal of a
88+ certificate under this subsection may not apply for a new
89+ certificate until the day after the first anniversary of the date
90+ the certificate was canceled or the renewal of the certificate was
91+ denied.
92+ SECTION 4. Sections 32.23(a-1), (b-1), and (e), Alcoholic
93+ Beverage Code, are amended to read as follows:
94+ (a-1) A holder of a private club registration permit that is
95+ a restaurant may be issued a food and beverage certificate by the
96+ commission if the commission finds that the receipts from the
4297 service of alcoholic beverages by the permit holder at the location
4398 are 60 percent or less of the total receipts from the location.
44- SECTION 5. Section 69.16(a-1), Alcoholic Beverage Code, is
45- amended to read as follows:
46- (a-1) A holder of a retail dealer's on-premise license may
47- be issued a food and beverage certificate by the commission if:
48- (1) the license holder is a restaurant; or
49- (2) the commission finds that the receipts from the
50- sale of alcoholic beverages by the license holder at the location
51- are 60 percent or less of the total receipts from the location.
99+ (b-1) [The commission shall adopt rules requiring the
100+ holder of a food and beverage certificate to assure that permanent
101+ food service facilities for the preparation and service of multiple
102+ entrees for consumption at the location are available at the
103+ location.] The commission may exempt permittees who are
104+ concessionaires in public entertainment venues such as sports
105+ stadiums and convention centers from:
106+ (1) the requirement that the permittee operate its own
107+ permanent food service facility with commercial cooking equipment
108+ on its premises; and
109+ (2) the sales requirements under Subsection
110+ [Subsections] (a-1) [and (b)].
111+ (e) A certificate issued under this section expires on the
112+ expiration of the primary private club registration permit. A
113+ certificate may be canceled at any time, and the renewal of a
114+ certificate may be denied, if the commission finds that the holder
115+ of the certificate is in violation of Subsection (a-1) [or (b) or a
116+ rule adopted under Subsection (b-1)]. On finding that the
117+ permittee knowingly operated under a food and beverage certificate
118+ while not complying with this section [or a rule adopted under
119+ Subsection (b-1)], the commission may cancel or deny the renewal of
120+ the permittee's private club registration permit. The holder of a
121+ private club registration permit whose certificate has been
122+ canceled or who is denied renewal of a certificate under this
123+ subsection may not apply for a new certificate until the day after
124+ the first anniversary of the date the certificate was canceled or
125+ the renewal of the certificate was denied.
126+ SECTION 5. Sections 69.16(a-1), (b-1), and (d), Alcoholic
127+ Beverage Code, are amended to read as follows:
128+ (a-1) A holder of a retail dealer's on-premise license that
129+ is a restaurant may be issued a food and beverage certificate by the
130+ commission if the commission finds that the receipts from the sale
131+ of alcoholic beverages by the license holder at the location are 60
132+ percent or less of the total receipts from the location.
133+ (b-1) [The commission shall adopt rules requiring the
134+ holder of a food and beverage certificate to assure that permanent
135+ food service facilities for the preparation and service of multiple
136+ entrees for consumption at the location are available at the
137+ location.] The commission may exempt licensees who are
138+ concessionaires in public entertainment venues such as sports
139+ stadiums and convention centers from:
140+ (1) the requirement that the permittee operate its own
141+ permanent food service facility with commercial cooking equipment
142+ on its premises; and
143+ (2) the sales requirements under Subsection
144+ [Subsections] (a-1) [and (b)].
145+ (d) A certificate issued under this section expires on the
146+ expiration of the primary retail dealer's on-premise license. A
147+ certificate may be canceled at any time, and the renewal of a
148+ certificate may be denied, if the commission finds that the holder
149+ of the certificate is in violation of Subsection (a-1) [or (b) or a
150+ rule adopted under Subsection (b-1)]. On finding that the licensee
151+ knowingly operated under a food and beverage certificate while not
152+ complying with this section [or a rule adopted under Subsection
153+ (b-1)], the commission may cancel or deny the renewal of the
154+ licensee's retail dealer's on-premise license. The holder of a
155+ retail dealer's on-premise license whose certificate has been
156+ canceled or who is denied renewal of a certificate under this
157+ subsection may not apply for a new certificate until the day after
158+ the first anniversary of the date the certificate was canceled or
159+ the renewal of the certificate was denied.
52160 SECTION 6. Subtitle C, Title 5, Business & Commerce Code, is
53161 amended by adding Chapter 114 to read as follows:
54162 CHAPTER 114. THIRD-PARTY FOOD DELIVERY SERVICES
55163 Sec. 114.0001. DEFINITIONS. In this chapter:
56164 (1) "Mark" and "trade name" have the meanings assigned
57165 by Section 16.001.
58166 (2) "Restaurant" has the meaning assigned by Section
59167 1.04, Alcoholic Beverage Code.
60168 (3) "Third-party food delivery service" means a
61- website, mobile application, or other service that acts as an
62- intermediary between consumers and multiple restaurants not owned
63- or operated by the service to arrange for the delivery or pickup of
169+ website, mobile application, or other Internet-based service that
170+ acts as an intermediary between consumers and multiple restaurants
171+ not owned or operated by the service to arrange for the delivery of
64172 food or beverages from those restaurants.
65173 Sec. 114.0002. PROHIBITED ACTS. A third-party food
66174 delivery service may not:
67- (1) arrange for the delivery or pickup of food or
68- beverages from a restaurant in this state unless the service has
69- filed a certificate of formation or registration with the secretary
70- of state;
175+ (1) arrange for the delivery of food or beverages from
176+ a restaurant in this state unless the service has filed a
177+ certificate of formation or registration with the secretary of
178+ state;
71179 (2) use a restaurant's mark or trade name in connection
72180 with the service in a misleading way that suggests the restaurant
73181 sponsors or endorses the service;
74- (3) add a restaurant removed from the service under
75- Section 114.0003 to the service unless the service has received
76- written consent from the restaurant to add the restaurant to the
77- service; or
78- (4) charge a restaurant a fee or require the
79- restaurant to absorb a fee in connection with the service's
80- arrangement of an order from that restaurant unless the restaurant
81- has agreed to pay or absorb the fee under an agreement that meets
82- the requirements of Section 114.0004.
182+ (3) alter a restaurant's pricing for a food or beverage
183+ ordered from the restaurant on the service, except that the service
184+ may charge additional fees for use of the service if the fees are
185+ clearly expressed to the consumer as a separate charge from the
186+ price of the food or beverage ordered from the restaurant; or
187+ (4) charge a restaurant a fee in connection with the
188+ service's delivery of food or beverages from that restaurant unless
189+ the restaurant has agreed to pay a fee to the service under an
190+ agreement under Section 114.0004.
83191 Sec. 114.0003. REQUIREMENTS FOR SERVICE. A third-party
84192 food delivery service shall:
85193 (1) provide a consumer a clearly identified mechanism
86194 for the consumer to express concerns or complaints directly to the
87- service regarding an order arranged through the service; and
195+ service regarding a delivery of food or beverages arranged through
196+ the service; and
88197 (2) remove a restaurant from the service not later
89198 than the 10th day after the date the service receives a request from
90199 the restaurant to be removed from the service if the service does
91- not have an agreement with the restaurant that meets the
92- requirements of Section 114.0004.
200+ not have an agreement with the restaurant to provide the delivery
201+ service.
93202 Sec. 114.0004. TERMS OF AGREEMENT WITH RESTAURANT. (a) An
94203 agreement between a third-party food delivery service and a
95204 restaurant must:
96205 (1) be in writing;
97206 (2) expressly authorize the service to arrange for the
98- delivery or pickup of food or beverages from that restaurant; and
207+ delivery of food or beverages from that restaurant; and
99208 (3) clearly state each fee, including a commission or
100- other charge, that the restaurant will be required to pay to the
101- service or absorb in connection with an order arranged through the
102- service.
209+ other charge, that the restaurant will be required to pay or absorb
210+ in connection with the service's delivery of food from that
211+ restaurant.
103212 (b) The agreement may not include any provision that
104213 requires the restaurant to indemnify the third-party food delivery
105214 service, including an employee or independent contractor of the
106215 service, for claims or liabilities resulting from acts or omissions
107216 of the service or of an employee or independent contractor of the
108217 service.
109218 (c) A provision in an agreement that violates Subsection (b)
110219 is void and unenforceable.
111220 Sec. 114.0005. PRIVATE CAUSE OF ACTION. (a) If a
112- third-party food delivery service violates this chapter, a
113- restaurant aggrieved by the violation may bring an action against
114- the service for:
221+ third-party food delivery service violates Section 114.0002 or
222+ 114.0003, a restaurant aggrieved by the violation may bring an
223+ action against the service for:
115224 (1) injunctive relief; and
116225 (2) damages in an amount equal to:
117226 (A) the restaurant's actual damages arising from
118227 the violation; or
119228 (B) the service's profits arising from the
120229 violation.
121230 (b) If the court finds that the defendant committed the
122231 violation knowingly or in bad faith, the court may award the
123232 plaintiff:
124233 (1) exemplary damages in an amount that is not more
125234 than three times the sum of:
126235 (A) the plaintiff's actual damages; and
127236 (B) the defendant's profits arising from the
128237 violation; and
129238 (2) the plaintiff's reasonable attorney's fees.
130- SECTION 7. Chapter 250, Local Government Code, is amended
239+ SECTION 7. Subchapter D, Chapter 438, Health and Safety
240+ Code, is amended by adding Section 438.0432 to read as follows:
241+ Sec. 438.0432. DELIVERY SERVICE FOOD SAFETY ACCREDITATION.
242+ (a) In this section, "third-party food delivery service" has the
243+ meaning assigned by Section 114.0001, Business & Commerce Code.
244+ (b) Notwithstanding Section 438.043, the department as
245+ provided by this section may accredit an education program on basic
246+ food safety for third-party food delivery service employees and
247+ independent contractors who deliver food as authorized by Chapter
248+ 114, Business & Commerce Code.
249+ (c) The executive commissioner shall by rule define the
250+ training on basic food safety that must be included in a third-party
251+ food delivery service course curriculum. The course length may not
252+ exceed 30 minutes.
253+ (d) An education program accredited under this section may
254+ require a participant to achieve a passing score on an examination
255+ to successfully complete the course for certification.
256+ (e) An education program accredited under this section may
257+ be provided through the Internet or a mobile application.
258+ (f) The department or a local health authority may not
259+ require a third-party food delivery service employee or independent
260+ contractor to complete an education program accredited under this
261+ section. A local health authority may not charge a fee to an
262+ employee or contractor who provides proof of completion of an
263+ education program accredited under this section.
264+ SECTION 8. Chapter 250, Local Government Code, is amended
131265 by adding Section 250.011 to read as follows:
132266 Sec. 250.011. THIRD-PARTY FOOD DELIVERY SERVICES. (a) In
133267 this section, "third-party food delivery service" has the meaning
134268 assigned by Section 114.0001, Business & Commerce Code.
135269 (b) Notwithstanding any other law, a municipality or county
136- may not adopt or enforce an ordinance or regulation to the extent
137- that the ordinance or regulation affects the terms of agreements
138- between third-party food delivery services and restaurants that
139- meet the requirements of Section 114.0004, Business & Commerce
140- Code.
141- SECTION 8. Section 114.0004, Business & Commerce Code, as
270+ may not adopt or enforce an ordinance or regulation that:
271+ (1) applies requirements to a third-party food
272+ delivery service that are more restrictive than the requirements
273+ that apply to the service under Chapter 114, Business & Commerce
274+ Code;
275+ (2) affects the fees charged to a restaurant by a
276+ third-party food delivery service; or
277+ (3) affects the terms of an agreement between a
278+ third-party food delivery service and a restaurant required under
279+ Section 114.0004, Business & Commerce Code.
280+ SECTION 9. The following sections of the Alcoholic Beverage
281+ Code are repealed:
282+ (1) Section 25.13(b), as effective September 1, 2021;
283+ (2) Section 28.18(b);
284+ (3) Section 32.23(b); and
285+ (4) Section 69.16(b).
286+ SECTION 10. Section 114.0004, Business & Commerce Code, as
142287 added by this Act, applies only to an agreement entered into or
143288 renewed on or after the effective date of this Act.
144- SECTION 9. This Act takes effect January 1, 2022.
289+ SECTION 11. This Act takes effect September 1, 2021.