Law:Title 3. Licenses And Permits. Subtitle A. Permits from Chapter 28. Mixed Beverage Permit (Texas)

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Subtitle A. Permits

Contents

Chapter 28. Mixed Beverage Permit

Section  28.01.  Authorized Activities.

(a) The holder of a mixed beverage permit may sell, offer for sale, and possess mixed beverages, including distilled spirits, for consumption on the licensed premises:

(1)  from sealed containers containing not less than one fluid ounce nor more than two fluid ounces or of any legal size; and

(2)  from unsealed containers.

(b)  The holder of a mixed beverage permit for an establishment in a hotel may deliver mixed beverages, including wine and beer, to individual rooms of the hotel or to any other location in the hotel building or grounds, except a parking area or the licensed premises of another alcoholic beverage establishment, without regard to whether the place of delivery is part of the licensed premises. A permittee in a hotel may allow a patron or visitor to enter or leave the licensed premises, even though the patron or visitor possesses an alcoholic beverage, if the beverage is in an open container and appears to be possessed for present consumption.

(c)  The holder of a mixed beverage permit may also:

(1)  purchase wine, beer, ale, and malt liquor containing alcohol of not more than 21 percent by volume in containers of any legal size from any permittee or licensee authorized to sell those beverages for resale; and

(2)  sell the wine, beer, ale, and malt liquor for consumption on the licensed premises.

Acts 1977, 65th Leg., p. 429, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, Sec. 4, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 111, ch. 70, Sec. 1, eff. Aug. 27, 1979.



Section  28.02.  Fee.

(a) The annual state fee for an original mixed beverage permit is $3,000.

(b)  The annual state fee for the first renewal of a mixed beverage permit is $2,250.

(c)  The annual state fee for the second renewal of a mixed beverage permit is $1,500.

(d)  The annual state fee for the third and each subsequent renewal of a mixed beverage permit is $750.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 1346, ch. 278, Sec. 18, eff. Sept. 1, 1984.



Section  28.03.  Information Required Of Applicants.

In addition to the information required of applicants for permits under this code, the applicant for a mixed beverage permit must file with his original and renewal application a sworn statement in a form prescribed by the commission or administrator containing the following information:

(1)  the name and residential address of the lessor of the premises;

(2)  the name and address of the lessee of the premises;

(3)  the amount of monthly rental on the premises and the date of expiration of the lease;

(4)  whether the lease or rental agreement includes furniture and fixtures;

(5)  whether the business is to be operated under a franchise and, if so, the name and address of the franchisor;

(6)  the name and address of the accountant of the business;

(7)  a list of all bank accounts, including account numbers, used in connection with the business; and

(8)  any information required by the commission or administrator relevant to the determination of all persons having a financial interest of any kind in the granting of the mixed beverage permit.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.04.  Change In Corporate Control.

(a) A mixed beverage permit held by a corporation may not be renewed if the commission or administrator finds that legal or beneficial ownership of over 50 percent of the stock of the corporation has changed since the time the original permit was issued.

(b)  The commission or administrator may adopt reasonable rules and regulations in accordance with the provisions of this section.

(c)  A corporation which is barred from renewing a permit because of this section may file an application for an original permit and may be issued an original permit if otherwise qualified.

(d)  This section does not apply to a change in corporate control:

(1)  brought about by the death of a shareholder if the shareholder's surviving spouse or descendants are the shareholder's successors in interest; or

(2)  brought about when legal or beneficial ownership of over 50 percent of the stock of the corporation has been transferred:

(A)  to a person who possesses the qualifications required of other applicants for permits and is currently an officer of the corporation and has been an officer of the corporation ever since the date the original permit was issued; or

(B)  if the permittee notifies the commission, on completed forms and attachments prescribed by the commission, of the proposed transfer prior to the date the transfer is to become effective and the commission does not find that circumstances exist that would be grounds for the denial of a renewal of the permit under Section 11.46 and provided the ownership of the corporation immediately after the transfer satisfies the requirements of this code.

(e)  Nothing in this section shall be construed to grant any property right to any permit or construed to prevent the commission from suspending or canceling a permit at any time after notice and hearing for a violation of this code.

Acts 1977, 65th Leg., p. 430, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 303, Sec. 6, eff. June 11, 1987; Acts 1989, 71st Leg., 1st C.S., ch. 36, Sec. 3, eff. Oct. 18, 1989; Acts 1993, 73rd Leg., ch. 934, Sec. 34, eff. Jan. 1, 1994.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 986, Sec. 4, eff. September 1, 2007.



Section  28.05.  Renewal Of Permit By Descendant Or Surviving Spouse.

If the surviving spouse or surviving descendant of a holder of a mixed beverage permit qualifies as the successor in interest to the permit as provided in Section 11.10 of this code, the descendant or surviving spouse may continue to renew the permit by paying a renewal fee equal to the fee the permittee would be required to pay had he lived.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.06.  Possession Of Alcoholic Beverage Not Covered By Invoice.

(a) No holder of a mixed beverage permit, nor any officer, agent, or employee of a holder, may possess or permit to be possessed on the premises for which the permit is issued any alcoholic beverage which is not covered by an invoice from the supplier from whom the alcoholic beverage was purchased.

(b)  A person who violates Subsection (a) of this section commits a misdemeanor punishable by a fine of not more than $1,000 or by confinement in the county jail for no more than 30 days or by both.

(c)  No holder of a mixed beverage permit, nor any officer, agent, or employee of a holder, may knowingly possess or permit to be possessed on the licensed premises any alcoholic beverage which is not covered by an invoice from the supplier from whom the alcoholic beverage was purchased.

(d)  A person who violates Subsection (c) of this section commits a misdemeanor punishable by a fine of not less than $500 nor more than $1,000 and by confinement in the county jail for not less than 30 days nor more than two years. The commission or administrator shall cancel the permit of any permittee found by the commission or administrator, after notice and hearing, to have violated or to have been convicted of violating Subsection (c) of this section.

(e)  The commission by rule may allow the holder of a mixed beverage permit or an officer, agent, or employee of the permit holder to possess and use alcoholic beverages that are not covered by an invoice on the permitted premises for cooking purposes.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1, 1977.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 441, Sec. 2, eff. September 1, 2009.



Section  28.07.  Purchase And Transportation Of Alcoholic Beverages.

(a) All distilled spirits sold by a holder of a mixed beverage permit must be purchased from a holder of a local distributor's permit in the county in which the premises of a mixed beverage permittee is located.

(b)  If a holder of a mixed beverage permit is in a county where there are no local distributors, he may purchase alcoholic beverages in the nearest county where local distributors are located and may transport them to his premises provided that he is also a holder of a beverage cartage permit. The transporter may acquire the alcoholic beverages only on the written order of the holder of the mixed beverage permit. The alcoholic beverages must be accompanied by a written statement furnished and signed by the local distributor showing the name and address of the consignee and consignor, the origin and destination of the shipment, and any other information required by the commission or administrator. The person in charge of the alcoholic beverages while they are being transported shall exhibit the written statement to any representative of the commission or any peace officer on demand, and the statement shall be accepted by the representative or officer as prima facie evidence of the lawful right to transport the alcoholic beverages.

(c)  If a mixed beverage permittee holds a beverage cartage permit and his premises are located in a regional airport governed by a board, commission, or authority composed of members from two or more counties, and there is no local distributor at the airport, the mixed beverage permittee may purchase alcoholic beverages from any local distributor in a trade area served by the airport and transport them to his licensed premises. The transportation of the beverages must be in accordance with Subsection (b) of this section.

Acts 1977, 65th Leg., p. 431, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1977, 65th Leg., p. 1182, ch. 453, Sec. 5, eff. Sept. 1, 1977; Acts 1993, 73rd Leg., ch. 934, Sec. 35, eff. Sept. 1, 1993.



Section  28.08.  Refilling Containers Prohibited.

No holder of a mixed beverage permit may refill with any substance a container which contained distilled spirits on which the tax prescribed in Section 201.03 of this code has been paid.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.081.  Substitution Of Brand Without Consent Of Consumer Prohibited.

(a) The holder of a mixed beverage permit or a private club permit, or the agent, servant, or employee of a holder of a mixed beverage permit or private club permit commits an offense if the holder, agent, servant, or employee substitutes one brand of alcoholic beverage for a brand that has been specifically requested by a consumer, unless the consumer is notified and consents to the substitution.

(b)  A holder of a permit who violates Subsection (a) of this section is liable in a civil suit to a consumer for damages resulting from the substitution. The court shall award the prevailing party in an action under this section attorney's fees and costs of action.

(c)  The commission shall provide written notice of the provisions of this section to an applicant or permittee when issuing an original or renewal mixed beverage permit or private club permit on or after October 1, 1993.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 36, eff. Sept. 1, 1993.



Section  28.09.  Invalidation Of Stamp.

(a) A holder of a mixed beverage permit or any person employed by the holder who empties a bottle containing distilled spirits on which the tax prescribed in Section 201.03 of this code has been paid, shall immediately after emptying the bottle invalidate the identification stamp on the bottle in the manner prescribed by rule or regulation of the commission or administrator.

(b)  Each holder of a mixed beverage permit shall provide at all service counters where distilled spirits are poured from bottles the necessary facilities for the invalidation of identification stamps on bottles so that persons emptying distilled spirits bottles may immediately invalidate the identification stamps on them.

(c)  If an empty distilled spirits bottle has locked on it an automatic measuring and dispensing device of a type approved by the commission or administrator, which prevents the refilling of the bottle without unlocking the device and removing it from the bottle, the identification stamp is not required to be invalidated until immediately after the device has been unlocked and removed from the bottle.

(d)  A holder of a mixed beverage permit or any of his officers, agents, or employees who is found in possession of an empty distilled spirits bottle which contained distilled spirits on which the tax prescribed in Section 201.03 of this code has been paid and on which the identification stamp has not been invalidated in accordance with this section commits a separate offense for each bottle so possessed.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.10.  Consumption Restricted To Premises; Exceptions.

(a) Except as provided by this section or Section 28.01(b), a mixed beverage permittee may not sell an alcoholic beverage to another mixed beverage permittee or to any other person except for consumption on the seller's licensed premises.

(b)  A mixed beverage permittee may not permit any person to take any alcoholic beverage purchased on the licensed premises from the premises where sold, except that:

(1)  a person who orders wine with food and has a portion of the open container remaining may remove the open container of wine from the premises; and

(2)  a mixed beverage permittee who also holds a brewpub license may sell or offer without charge on the premises of the brewpub, to an ultimate consumer for consumption on or off the premises, malt liquor, ale, or beer produced by the permittee, in or from a lawful container in an amount that does not exceed one-half barrel, provided that the aggregate amount of malt liquor, ale, and beer removed from the premises under this subdivision does not exceed 1,000 barrels annually.

(c)  A mixed beverage permit holder who holds a food and beverage certificate may designate as part of the permit holder's premises a secured noncontiguous area located on a public sidewalk adjoining the premises if the designation is authorized by city ordinance.  The ordinance may specify and limit the areas of the municipality in which this subsection is applicable.  Alcoholic beverages may be delivered by an employee of the permit holder to patrons for consumption in the designated sidewalk area.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 2001, 77th Leg., ch. 1274, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 409, Sec. 1, eff. June 15, 2007.



Section 28.101.  Public Consumption.

(a) This section applies only to a mixed beverage permit holder whose premises are located in a municipality that:

(1)  has a population of less than 15,000;

(2)  is located in a county with a population of less than 65,000; and

(3)  contains a historic preservation district that borders a lake.

(b)  Notwithstanding Section 28.10 or any other law, the holder of a mixed beverage permit whose permitted premises are located on property owned by a municipality that contains a municipally owned conference center and that borders a lake may permit a patron to leave the permitted premises, even though the patron possesses an alcoholic beverage, if:

(1)  the beverage is in an open container and appears to be possessed for present consumption; and

(2)  the public consumption of alcoholic beverages or possession of an open container of an alcoholic beverage is not prohibited on the municipally owned property where the permitted premises are located.

(c)  This section does not affect the prohibition against possessing an open container in a passenger area of a motor vehicle under Section 49.031, Penal Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 1045, Sec. 1, eff. September 1, 2009.



Section  28.11.  Breach Of Peace.

The commission or administrator may suspend or cancel a mixed beverage permit after giving the permittee notice and the opportunity to show compliance with all requirements of law for the retention of the permit if it finds that a breach of the peace has occurred on the licensed premises or on premises under the control of the permittee and that the breach of the peace was not beyond the control of the permittee and resulted from his improper supervision of persons permitted to be on the licensed premises or on premises under his control.

Acts 1977, 65th Leg., p. 432, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.12.  Sale Of Malt Beverages To Permittee.

The sale of malt beverages to a mixed beverage permittee by a local distributor's permittee or by a licensee authorized to sell them for resale is subject to the provisions of Section 61.73 of this code.

Acts 1977, 65th Leg., p. 433, ch. 194, Sec. 1, eff. Sept. 1, 1977.



Section  28.13.  Issuance Of Permit For Certain Boats.

(a) A mixed beverage permit may be issued for a boat if:

(1)  the boat:

(A)  carries at least 350 passengers;

(B)  weighs at least 90 gross tons; and

(C)  is at least 80 feet long; and

(2)  the home port of the boat is in an area where the sale of mixed beverages is legal.

(a-1)  A mixed beverage permit may be issued for a regularly scheduled excursion boat that is licensed by the United States Coast Guard to carry passengers on the navigable waters of the state if:

(1)  the boat:

(A)  carries at least 45 passengers;

(B)  weighs at least 35 gross tons;  and

(C)  is at least 55 feet long;

(2)  the home port of the boat is in an area where the sale of mixed beverages is legal; and

(3)  the owner or operator of the boat is the sole permit holder for the boat.

(b)  For purposes of Section 11.38 of this code, the home port of the boat is treated as the location of the licensed premises.

(c)  Repealed by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 21.05.

(d)  A mixed beverage permit may be issued under this section to a boat regularly used for voyages in international waters regardless of whether the sale of mixed beverages is lawful in the area of the home port.  A person having authority to deliver alcoholic beverages to a mixed beverage permit holder in the county where the licensed premises is located may deliver alcoholic beverages purchased by the permit holder.  Subsections (a)(2) and (a-1)(2) do not apply to this subsection.

(e)  The provisions of Section 109.53 that relate to residency requirements and compliance with Texas laws of incorporation:

(1)  do not apply to the holders of a mixed beverage permit under Subsection (a); and

(2)  do apply to the holder of a mixed beverage permit under Subsection (a-1).

(f)  A permit for an excursion boat issued under Subsection (a-1) is inoperative in a dry area.

Added by Acts 1985, 69th Leg., ch. 540, Sec. 1, eff. June 12, 1985. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 21.02, 21.05, eff. Jan. 11, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 294, Sec. 1, eff. September 1, 2007.



Section  28.14.  Merger Or Consolidation Of Corporations Holding Mixed Beverage Permits.

When two or more corporations which have substantially similar ownership and which hold mixed beverage permits issued by the commission merge or consolidate and pay to the commission a $100 fee for each licensed premises, the surviving corporation shall succeed to all the privileges of such corporations in the permits held by such corporations provided the surviving corporation is qualified to hold such permits under this code. For purposes of this section, two corporations have substantially similar ownership if 90 percent or more of both corporations is owned by the same persons.

Added by Acts 1989, 71st Leg., 1st C.S., ch. 36, Sec. 4, eff. Oct. 18, 1989.



Section  28.15.  Stamps.

(a) A mixed beverage permittee may not possess or permit a person to possess on the premises distilled spirits in any container that does not bear a serially numbered identification stamp issued by the commission or other identification approved by the commission.

(b)  A holder of a local distributor's permit may not knowingly sell, ship, or deliver distilled spirits in any container that does not bear a serially numbered identification stamp issued by the commission or other identification approved by the commission.

(c)  Identification stamps may be issued only to a holder of a local distributor's permit who shall affix the stamps as prescribed by the commission or administrator.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1, 1994.



Section  28.16.  Permit Ineligibility.

A mixed beverage permit may not be issued to:

(1)  a person whose permit was canceled for a violation of Section 28.06(c) of this code;

(2)  a person who held an interest in a permit that was canceled for a violation of Section 28.06(c) of this code;

(3)  a person who held 50 percent or more of the stock, directly or indirectly, of a corporation whose permit was canceled for a violation of Section 28.06(c) of this code;

(4)  a corporation, if a person holding 50 percent or more of the corporation's stock, directly or indirectly, is disqualified from obtaining a permit under Subdivision (3) of this section; or

(5)  a person who resides with a person who is barred from obtaining a permit because of a violation of Section 28.06(c) of this code.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1, 1994.



Section  28.17.  Summary Suspension.

(a) The commission may summarily suspend, without a hearing, the permit of a permittee who fails to file a return, post the security required by the comptroller under Section 183.053, Tax Code, or make a tax payment. The administrative procedure law, Chapter 2001, Government Code, does not apply to the commission in the enforcement and administration of this section.

(b)  A suspension under this section takes effect on the third day after the date the notice of suspension is provided. Notice of suspension shall be sent by registered or certified mail to the permittee or the permittee's agent, servant, or employee if not given in person.

(c)  The commission shall terminate a suspension made under this section when the permittee files all required returns, posts the security required by the comptroller under Section 183.053, Tax Code, and makes all required tax payments, including payment of penalties that are due.

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 37, eff. Jan. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1001, Sec. 6, eff. Aug. 28, 1995.



Section  28.18.  Food And Beverage Certificate.

(a) A holder of a mixed beverage permit may be issued a food and beverage certificate by the commission if the gross receipts of mixed beverages sold by the holder are 50 percent or less of the total gross receipts from the premises.

(b)  An applicant or holder of a food and beverage certificate shall have food service facilities for the preparation and service of multiple entrees. The commission shall adopt rules as necessary to assure that the holder of a food and beverage certificate maintains food service on the premises for which a food and beverage certificate has been issued.

(c)  The fee for a food and beverage certificate shall be set at a level sufficient to recover the cost of issuing the certificate and administering this section.

(d)  On receipt of an application for a renewal of a mixed beverage permit by a holder who also holds a food and beverage certificate, the commission shall request certification by the comptroller to determine whether the holder is in compliance with Subsection (a). In determining compliance with Subsection (a), the comptroller shall compare the permittee's gross receipts tax reports with the permittee's sales tax reports for the premises. If the comptroller does not certify that the holder is in compliance with Subsection (a), the commission may not renew the certificate.

(e)  A certificate expires on the expiration of the primary mixed beverage permit. A holder of a mixed beverage permit who is denied renewal of a certificate may not apply for a new certificate until the day after the first anniversary of the determination of the comptroller under Subsection (d).

(f)  Section 11.11 does not apply to the holder of a food and beverage certificate.

Added by Acts 1995, 74th Leg., ch. 1060, Sec. 6, eff. Aug. 28, 1995. Amended by Acts 2001, 77th Leg., ch. 853, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1045, Sec. 2, eff. Sept. 1, 2001.


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