TABC Issues Emergency Amendments to Help More Texas Bars Reopen as Restaurants

Jackson Walker

Jackson Walker

The Texas Alcoholic Beverage Commission has approved emergency amendments to Rule §33.5 that will enable retailers who sell alcoholic beverages for on-premises consumption to more easily qualify for a food and beverage certificate, making it easier for bars around the state to begin to reopen.

In Executive Order GA-28, issued on June 26th, Governor Abbott required all bars and similar establishments that receive more than 51% of their gross receipts from the sale of alcoholic beverages to temporarily close, except for delivery and take out.

On August 7th, the TABC made it easier for businesses that have a 51% designation with the agency or that have not traditionally been considered a restaurant by the TABC to apply to qualify as a restaurant in order to provide dine-in services by applying for a food and beverage certificate.

The new emergency rule, approved on August 25th, will make acquiring that food and beverage certificate easier. According to the TABC, “the rule’s amendments remove some of the more difficult and costly requirements for a food and beverage certificate so that businesses can qualify without making major changes to their business models or buying expensive equipment.”

The amendment strikes the requirement that an establishment had to have a “prominence of food items on the menu as compared to alcoholic beverages.” Commercial cooking equipment is no longer required, and the sale of commercially pre-packaged items from a fellow business, or a food truck on the property, will be accepted as a way for an establishment to obtain the 51% food revenue classification.

The rule’s amendment explains that TABC may adopt an emergency rule without prior notice or hearing upon finding that imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. The notice states that the financial welfare of the affected businesses, many of whom would be forced to permanently close without this amendment, qualifies as triggering the “imminent welfare” requirement.

Emergency rules adopted under Government Code §2001.034 may be effective for no longer than 120 days and may be renewed for no longer than 60 days.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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