FORUM DESCRIPTION
Along with the repeal of Prohibition, the 21st Amendment of the United States Constitution gave individual states the right to control the sale, distribution, and possession of alcohol within the state. Thus, the sale of alcohol is regulated by individual states.
The state agency known as the Texas Alcoholic Beverage Commission (United States Constitution), created in 1935, regulates all phases of the alcoholic beverage industry in Texas, including sales, taxation, importation, manufacturing, transporting, and advertising. The mission of the TABC is to serve the people of Texas and protect the public health and safety through consistent, fair, and timely administration of the Texas Alcoholic Beverage Code (the governing statutes).
It is important to know that the sale of alcohol is not a right, but a privilege. Business owners must qualify and obtain a Texas alcoholic beverage license to sell alcohol legally. Once licensed, failing to comply with the law can result in the loss of that license. There are many different types of licenses in Texas. Descriptions of a few of the more common licenses are listed below.
- Package Store Permit– Allows the holder to sell liquor, malt, and vinous liquors on or from the licensed premises to the consumer for off-premise consumption.
- Mixed Beverage Permit– Allows the holder to sell mixed beverages from unsealed containers and wine, beer, ale, and malt liquor in containers of any legal size for consumption on the premises.
- Food and Beverage Permit– May be issued to the holder of certain types of permit holders, including Mixed Beverage Permit holders if receipts from the sale of alcoholic beverages by the license holder at the location are 60% or less of the total receipts. The location must have permanent food service facilities for the preparation and service of multiple entrees for consumption at the location.
As you have learned in Session 1, the law is not stagnant, rather it changes over time as society changes. Texas alcohol laws have changed over time, but very slowly. The Texas prohibition on alcohol was repealed in 1935, following the national repeal in 1933. It took another 36 years before the sale of liquor by the drink was permitted in Texas.
Texas law did not allow Mixed Beverage Permit holders (MBP’s), such as bars & restaurants, to deliver alcohol to their customers located off of the MBP’s premises until September of 2019 and only under certain conditions, including the following:
- The MBP also holds a Food & Beverage (FB) Permit.
- The delivery must be made by a person over the age of 21; the recipient must be over the age of 21 and not intoxicated.
- The delivery must not be on the MBP’s property (in other words, alcohol “to go” is not permitted).
Because an FB Permit is required, some MBP’s (typically those with less than 60% of their sales from food or without permanent food preparation facilities) are not permitted to deliver alcohol under this new law.
There have been some recent changes in this new law; however, the changes are temporary. Most states authorize the governor to provide emergency management when a disaster has been declared. The Texas Disaster Act of 1975 gives our governor broad authority to act to reduce the vulnerability of Texans to damage or injury and loss of life from natural or manmade catastrophes, such as the current pandemic. Governor Abbott issued a disaster proclamation on March 13, 2020, certifying that novel coronavirus (COVID- 19) poses an imminent threat of disaster for all counties in the State of Texas and has since issued numerous Executive Orders to protect the citizens in various ways.
As you are aware, the COVID-19 crisis has disproportionately affected the hospitality industry. One example of this relates to alcohol sales. As a major part of many restaurants’ revenues, the ability to continue the sale of alcoholic beverages can be essential to their survival. To support the industry, Governor Abbott used his emergency management powers to suspend parts of the new alcoholic beverage delivery law described above so that businesses can adapt to the new operating methods (such as curbside service) brought about by the virus. While these suspensions are in place, MBP’s with permanent food service capabilities (even if they do not have an FB permit) may deliver alcohol with food orders, as well as allow customers to pick up alcohol with food orders. The following restrictions apply:
- Beer, ale, and wine must be in the original container, sealed by the manufacturer.
- Distilled spirits mixed into a drink must be in a container the MBP has sealed with an adhesive label (tape) that states the name of the MBP and “alcoholic beverage” AND has placed in a bag that it seals with a zip tie, which is then transported in an area other than the passenger area of the vehicle (such as a locked glove compartment, trunk, or the upright area behind the seat if there is no trunk).
Although temporary, allowing the delivery and pick up of beverages mixed with distilled spirits is a major change in Texas law. There appears to be a movement to making the changes permanent.
- What changes in society do you think brought about the 2019 change in Texas’ law regarding the delivery of alcoholic beverages? Can you think of any non-societal changes that might have influenced the change?
- Why do you think that Texas law has always prohibited MBP’s to deliver mixed beverages and “to go” mixed beverages, even under the 2019 law?
- Do you think that the temporary law (under the COVID-19 emergency) should be made permanent law? What are the pros and cons?
