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.