IssuesState HouseState SenateStatewide NewsTexas Legislators Ask Governor to Clarify Bar and Restaurant Classifications

Austin, TX, July 23, 2020 — When Governor Abbott closed bars in late June, the line distinguishing a restaurant and a bar was set at the 51 percent threshold. That means any establishment that makes 51 percent or more of its revenues from sales of alcohol is considered a “bar” under the order.

Anything below that threshold is considered a restaurant and may open at a limited capacity.

That dividing line has caused issues since the figure can be based on outdated revenue figures and thus isn’t malleable enough to account for establishments that adjusted their business model to the post-coronavirus requirements.

A coalition of 64 Texas legislators — in both chambers and from both parties — have called on the governor to provide more flexibility and clarity in those requirements.

Specifically, the group suggests the “restaurant” classification include establishments that:

• Have a permanent kitchen on its premises with an exhaust hood and fire suppression system
• Have the kitchen operational during all hours that the business is open, with multiple entrees available for consumption on the premises
• Only serve patrons who are seated in accordance with the social distancing protocols for restaurants (aside from to-go and delivery service)

The Texas Alcoholic Beverage Commission (TABC) is tasked with enforcing the order, citing establishments that classify as bars who operate in violation of the order.

The revenue category, a TABC official confirmed to The Texan, is based on the figures reported by the establishment when their permit was approved. Thus, the revenue model and its fixed date used by TABC will vary based on the establishment.

Another complication the letter points out is that the percentage can be skewed if establishments offer cheap food and expensive beverages, not accurately representing the amount of food they sell.

State Rep. Matt Krause (R-Fort Worth) said of the letter, “[It] proposes changes to certain definitions that would bring clarity to the existing situation and also allow thousands of Texans to resume working and providing a much needed service during these turbulent times.”

“The confusion has resulted in an estimated 1,500 restaurants and 35,000 employees to be out of work,” he concluded.

State Sen. Bryan Hughes (R-Mineola) told The Texan that he’d heard from businesses in his district that had just been allowed to reopen, strenuously adjusted their operations to fit the social distancing, but were then forced to close again despite their efforts.

“There are some businesses that operate like restaurants, and which were able to maintain social distancing even beyond what was required. But they’re just being hurt by their revenue streams,” Hughes added about the driving force behind this request.

He also said the governor’s office is aware of the request and is looking into this, and various other similar types of regulations.

At the beginning of the pandemic, a Houston University survey found that 20 percent of bars and restaurants in Texas were closing permanently.

Because of the mandated closures, the Texas Bar & Nightclub Alliance, along with other plaintiffs, filed suit against Governor Abbott alleging unfair treatment under the law. At a preliminary hearing on Wednesday, federal Judge Robert Pitman ruled the plaintiffs did not have standing against Abbott in that particular case.

In late-June, the TABC suspended 17 different bars’ alcohol permits for violations of the governor’s orders, specifically the social distancing protocols. That set of suspensions led to the sweeping closure of bars by the governor.

The legislators hope replacing this set of rules with the current, mere 51 percent line, will prevent some of the negative consequences bar and restaurant owners have experienced.

Editor’s Note: This article has been updated to include comments from State Sen. Bryan Hughes and the letter below replaced to include the latest version with updated signatories.