(a) 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. (b) Application for the certificate shall be upon forms provided by the agency. (c) The annual certificate fee for each location is $100 and must be submitted in the form of a cashier's check or U.S. postal money order 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 one year. (d) The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise.   (1) Food service--Cooking or assembling
food on premise primarily for on-premise consumption. Commercially pre-packaged items which require no cooking or assembly and which may be purchased off-premise do not constitute food service under this section.   (2) Entree--Main dish of a meal.   (3) Multiple entrees--No fewer than eight different entrees per meal period must be available to customers.   (4) Food service facilities--A portion of the licensed premises where food is stored and prepared primarily for on-premise consumption. (e) An applicant is not qualified for a food and beverage certificate unless the following conditions, in addition to other requirements, are satisfied:   (1) with respect to retail dealer's on-premise licenses and wine and beer retailer's permits, the applicant's primary business on the premises is food service and with respect to mixed beverage permits and private club registration permits, the
applicant maintains food service on the premise;   (2) multiple entrees are available to customers;   (3) food service facilities are maintained on the premises;   (4) the hours of operation for sale and service of food and alcoholic beverages are the same except that food may be sold or served before or after the legal hours for sale of alcoholic beverages; and   (5) subject to the approval of the commission, an applicant may present evidence to the commission which demonstrates substantial compliance with subsection (e)(2) and (4) and that full compliance is limited by the nature of the business operation. Approval by the commission may be granted when the commission is satisfied that the operation is a food service establishment. (f) 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.
(g) An applicant for an originally issued food and beverage certificate shall submit a sworn statement attesting that food service is maintained on the premises and for holders of wine and beer retailer's permits and retail dealer's on-premise licenses, food service is the primary business on the premises. The applicant shall furnish the following, as well as any other information as may be deemed reasonably necessary by the commission:   (1) the menu or, if no menu is available, a listing of the food and beverage items;   (2) hours of operation of food service and hours of operation for sale or service of alcoholic beverages;   (3) sales data or, if not available, projection of sales. The projection or data should include sufficient breakdown of revenues of food, alcoholic beverages and other major categories at the location;   (4) listing of equipment used in preparation and service of food
versus the equipment used in preparation and service of alcoholic beverages; and   (5) copies of floor plans of the licensed premises indicating areas devoted primarily to the preparation and service of food and those devoted primarily to the preparation and service of alcoholic beverages. (h) 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 information and other information or documents required by the commission to indicate the business at the licensed location is a food service establishment with food service facilities for the preparation and service of multiple entrees. (i) 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 entrees. In doing so the commission may review such items as required in the original or renewal application and advertising, promotional items, changes in operations or hours, changes in floor plans, prominence of food items on 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. (j) Failure to submit documentation requested or accurately maintain required records is prima facie evidence of non-compliance. (k) The certificate shall be posted in a conspicuous place adjacent to the primary permit or license at all times on the licensed premises. (l) 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. (m) Recordkeeping requirements for holders of wine and beer retailer's permits, including railway cars and excursion boats, and retail dealer's on-premise licenses:   (1) each holder of a food and beverage certificate whose primary permit or license is a wine and beer retailer's permit, including those issued for railway cars and excursion boats, or a retail dealer's on-premise license shall maintain records to reflect separate totals for alcoholic beverage sales, food sales and other major sales categories at the location. Purchase invoices must be maintained to reflect the total purchases of alcoholic beverages, food and other major purchase categories;   (2) complimentary alcoholic beverages shall be recorded and included in the total alcoholic beverage sales as if it was a normal sale and clearly marked as being complimentary;
  (3) all records are required to be maintained for four years and made available to authorized representatives of the commission upon reasonable request; and   (4) in examining the alcoholic beverage sales, the commission may compute and determine the percentage of alcoholic beverage sales upon the basis of information filed with the commission or held by the certificate holder, but if such information is insufficient, the computation and determination of the percentage of sales may be based upon any records or information which is available. (n) 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 of alcoholic beverages in determining the percentage of alcoholic beverage sales on the licensed premises.


Source Note: The provisions of this §33.5 adopted to be effective August 31, 1995, 20 TexReg 6321.