1. (a) This rule relates to sections 25.13, 28.18, 32.23 and 69.16 of the Texas Alcoholic Beverage Code.
2. (b) Each applicant for an original or renewal food and beverage certificate shall include all information required by the commission to insure compliance with all applicable statutes and rules and regulations of the agency.
3. (c) Application for the certificate shall be upon forms prescribed by the commission.
4. (d) The biennial certificate fee for each location is $200.00 and must be submitted in the form of a cashier's check, U.S. postal money order, or company check made payable to the Texas Alcoholic Beverage Commission. The original certificate will expire upon expiration of the primary permit or license. No prorated certificate fees will be given and no refunds made for issuance of the food and beverage certificate for less than two years.

5. (e) The following words and terms, when used in this section, shall have the following meaning unless the context clearly indicates otherwise:

   1. (1) Food service--cooking or assembling of food on the premise primarily for on-premise consumption. Commercially pre-packaged items purchased off-premise which require no cooking or assembly do not constitute food service under this section.
   2. (2) Entrée--main dish or course of a meal.
   3. (3) Multiple entrées -- at least eight different entrées per meal period must be available to customers.
   4. (4) Food service facilities--a portion of the licensed premises where food is stored and prepared primarily for on-premise consumption.
   5. (5) Premise--the licensed premise.
   6. (6) Location--the licensed premise.

6. (f) An applicant is qualified for a food and beverage certificate if the following conditions, in addition to other requirements, are satisfied:

   1. (1) multiple entrées are available to customers;
   2. (2) food service facilities are maintained on the premises;
   3. (3) with respect to retail dealer's on-premise licenses and wine and beer retailer's permits, the primary business on the premises is food service, as determined in accordance with subsection (q); and
   4. (4) with respect to mixed beverage permits and private club registration permits, the applicant maintains food service on the premise.
7. (g) 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.
8. (h) An applicant may present evidence to the executive director or the executive director's designee which demonstrates substantial compliance with subsections (f)(1)and (g). Approval may be granted when the executive director or the executive director's designee is satisfied that the operation is a food service establishment.
9. (i) If the applicant is a hotel that maintains separate area restaurants, lounges or bars, food service facilities must exist for each of the licensed premises.

10. (j) 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. (1) the menu or, if no menu is available, a listing of the food and beverage items;
    2. (2) hours of operation of food service and hours of operation for sale or service of alcoholic beverages;
    3. (3) sales data or, if not available, a projection of sales. The projection or data should include sufficient breakdown of revenues of food, alcoholic beverages and other major sales categories at the location;
    4. (4) listing of equipment used in the preparation and service of food; and
    5. (5) copies of floor plans of the licensed premises indicating areas devoted primarily to the preparation and service of food.
11. (k) Applicants for renewal of food and beverage certificates whose primary permits are a wine and beer retailer's permit or a retail dealer's on-premise license shall submit sales data described in subsection (o). The commission may request additional information or documentation to indicate the business at the licensed location is a food service establishment with food service facilities for the preparation and service of multiple entrées.
12. (l) The commission may review the operation at the licensed premises to determine the applicant or holder of the food and beverage certificate has or is maintaining food service with food service facilities for the preparation and service of multiple entrées. 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 business, number of transactions with food components, copies of city or county permits or certificates relating to type of business operation, and any other item deemed necessary or applicable.
13. (m) Failure to provide documentation requested or accurately maintain required records is prima facie evidence of non-compliance.
14. (n) In verifying that the certificate holder is maintaining food service as the primary business on the premises, the commission may examine all books, papers, records, documents, supplies and equipment of the certificate holder.

15. (o) The following recordkeeping requirements apply to certificate holders who hold a wine and beer retailer's permit, including railway cars and excursion boats, or a retail dealer's on-premise license:

    1. (1) records must be maintained to reflect separate totals for alcoholic beverage sales, food sales and other major sales categories at the location;
    2. (2) purchase invoices must be maintained to reflect the total purchases of alcoholic beverages, food and other major purchase categories at the location;
    3. (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. (4) all records must be maintained for four years and made available to authorized representatives of the commission upon reasonable request.
16. (p) In considering alcoholic beverage sales for holders of mixed beverage permits, private club registration permits, private club exemption certificate permits, and private club beer and wine permits, 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 on the licensed premises.
17. (q) In determining the primary business of retail dealer's on-premise licenses and wine and beer retailer's permits under subsection (f)(3), the receipts of all business entities sharing the premise (as identified in the original or a supplemental application) 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 and alcohol sales of all business entities sharing the licensed premise.

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.