16 Tex. Admin. Code § 33.5 - Food and Beverage Certificate
(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) Entre--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.
Notes
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