| (a) This rule relates to §§25.13, 28.18,
32.23 and 69.16 of the Texas Alcoholic Beverage Code.
(b) The following words and terms, when used in this
section, shall have the following meaning unless the context clearly
indicates otherwise:
(1) Entrée--course of a meal that may include
an appetizer, small plate, main dish, dessert or other similar food
item.
(2) Food service--the cooking, preparing, or assembling
of food on the location available for consumption at the location.
Commercially pre-packaged items purchased off of the location which
require no cooking or assembly do not constitute food service under
this section.
(3) Food service facilities--a designated permanent
portion of the licensed location where food is stored and prepared
for consumption at the location.
(4) Location--the designated physical address of a
premises, but also including all areas at that address where the license
or permit holder may sell, serve or deliver alcoholic beverages for
immediate consumption at the address, regardless of whether some of
those areas are occupied by other businesses, as long as those businesses
are contiguous.
(5) Premises--the designated area at a location that
is licensed by the commission for the sale, service, or delivery of
alcoholic beverages.
(6) Restaurant--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.
(c) An applicant is qualified for a food and beverage
certificate if the following conditions, in addition to other requirements,
are satisfied:
(1) multiple entrees are available to customers; and
(2) permanent food service facilities are maintained
at the location; and
(3) either:
(A) the receipts from the sale of alcoholic beverages
by the license or permit holder at the location are 60 percent or
less of the total receipts from the location; or
(B) the facility meets the definition of Restaurant
under subsection (b)(6) of this section.
(d) The hours of operation for sale and service of
food and of alcoholic beverages are the same except that food may
be sold or served before or after the legal hours for sale of alcoholic
beverages.
(e) If the applicant is a hotel that maintains separate
area restaurants, lounges or bars, food service facilities must exist
for each of the designated licensed premises.
(f) An applicant for an original food and beverage
certificate shall furnish the following, as well as any other information
requested by the commission to ensure compliance:
(1) the menu or, if no menu is available, a listing
of the food and beverage items;
(2) hours of operation of food service and hours of
operation for sale or service of alcoholic beverages;
(3) if qualifying under subsection (c)(3)(A) of this
section, sales data (including complimentary drinks, as recorded pursuant
to subsection (k)(3) of this section) or, if not available, a projection
of sales. The sales data or projection of sales should include sufficient
breakdown of revenues of food, alcoholic beverages, and all other
sales categories at the location (e.g., tickets, merchandise, retail
goods);
(4) if qualifying under subsection (c)(3)(B) of this
section, a list of commercial cooking equipment used in food service;
and
(5) copies of floor plans of the location indicating
the licensed premises and permanent areas devoted primarily to food
service.
(g) Applicants for renewal of food and beverage certificates
shall submit sales data described in subsection (k) of this section.
The commission may request additional information or documentation
to indicate that the licensed location has permanent food service
facilities for the preparation and service of multiple entrees.
(h) The commission may review the operation at the
location to determine that food service with food service facilities
for the preparation and service of multiple entrees is maintained.
In doing so the commission may review such items as required in the
original or renewal application as well as advertising, promotional
items, changes in operations or hours, changes in floor plans, prominence
of food items on the menu as compared to alcoholic beverages, name
of the business at the location, number of transactions with food
components, copies of city or county permits or certificates relating
to the type of business operation, and any other item deemed necessary
or applicable.
(i) Failure to provide documentation requested or accurately
maintain required records is prima facie evidence of non-compliance.
(j) In verifying that food service is being maintained
at the location, the commission may examine all books, papers, records,
documents, supplies and equipment of the certificate holder.
(k) The following recordkeeping requirements apply
to certificate holders:
(1) records must be maintained to reflect separate
totals for alcoholic beverage sales or service, food sales, and all
other sales categories at the location that, when combined, make up
the location's total sales;
(2) purchase invoices must be maintained to reflect
the total purchases of alcoholic beverages, food and all other purchase
categories at the location;
(3) complimentary alcoholic beverages must be recorded
and included in the total alcoholic beverage sales as if they were
sold and clearly marked as being complimentary; and
(4) all records must be maintained for four years and
made available to authorized representatives of the commission upon
request.
(l) In considering alcoholic beverage sales, the dollar
value of complimentary drinks shall be added to total sales or service
of alcoholic beverages in determining the percentage of alcoholic
beverage sales or service from the licensed premises.
(m) In determining the permanent food service facilities
requirement for businesses qualifying under subsection (c)(3)(A) of
this section, the gross receipts of all business entities sharing
the location will be considered. For audit purposes, it shall be the
responsibility of the food and beverage certificate holder to provide
financial and accounting records related to food, alcohol, and other
major sales categories of all business entities sharing the location.
For audit purposes, if such information that is provided is deemed
insufficient to determine if a license or permit holder qualifies
for issuance of a food and beverage certificate at the location, the
computation and determination of the percentage of alcohol sales or
service fees to total gross receipts at the licensed location may
be based upon any available records of information.
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| Source Note: The provisions of this §33.5 adopted to be effective August 31, 1995, 20 TexReg 6321; amended to be effective December 8, 2016, 41 TexReg 9504; amended to be effective December 18, 2017, 42 TexReg 7121; amended to be effective December 31, 2020, 45 TexReg 8770; amended to be effective September 1, 2021, 46 TexReg 5178; amended to be effective January 1, 2022, 46 TexReg 8242 |
