How does an FB certificate enable to-go and delivery alcohol sales alongside food?

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For a restaurant or bar holding a Mixed Beverage Permit (MB), the Food and Beverage Certificate (FB) is the condition that unlocks to-go and delivery alcohol. Section 28.1001 of the Alcoholic Beverage Code lets an MB holder send alcoholic beverages home with a food order, by pickup or delivery, only if it holds an FB for the premises, only as part of an order of food prepared there, and only in the sealed or tamper-proof containers the statute describes. Without the certificate, a mixed beverage permittee’s to-go authority is limited to narrow exceptions, such as a customer taking home wine ordered with a meal (Section 28.10).

Where the authority comes from

The pickup and delivery section, Section 28.1001, was added in 2019 by Senate Bill 1450 and amended by House Bill 1024, effective May 12, 2021. It applies to mixed beverage permittees, the businesses that serve spirits. TABC’s alcohol delivery and pickup page summarizes how the agency applies it to permit holders.

A business with only a Wine and Malt Beverage Retailer’s Permit (BG) is in a different position. That permit already allows wine and beer to be sold for consumption on or off the premises (Section 25.01), so to-go wine and beer do not depend on this section.

The four conditions for delivery

Section 28.1001(a-1) allows an MB holder to deliver, itself or through a third party such as a delivery company, to a customer in an area where the sale is legal, when all four conditions are met:

  1. The certificate. The permit holder holds an FB for the permitted premises.
  2. The food. The delivery is made as part of delivering food prepared at the permitted premises. A drink cannot be the whole order.
  3. The container. The rules differ by beverage:
  • beer or wine goes out in the manufacturer’s sealed original container, or in a tamper-proof container sealed by the permit holder and labeled with the business name and the words “alcoholic beverage”;
  • spirits go out in the manufacturer’s sealed single-serving container of 375 milliliters or less, or, for a mixed drink, in a tamper-proof container labeled with the business name and the words “alcoholic beverage.”

4. The destination. The delivery is not made to another licensed or permitted premises.

A tamper-proof container is one that, once sealed, clearly shows whether it has been opened. The statute names a closed cup in a bag sealed with a zip tie or staple, shrink wrap or a similar seal, or another method TABC approves by rule.

Pickup at the counter

Section 28.1001(a-2) applies the same idea to pickup. A customer may take the beverages away when the business holds an FB and the pickup is part of picking up food prepared there. The same container rules apply.

The age and identification rules

  • The person who delivers must be 21 or older (Section 28.1001(b)).
  • The person picking up or accepting delivery must be 21 or older and present valid proof of identity and age (Section 28.1001(c)).
  • The pickup or delivery must be documented, either by a receipt the customer signs, which may be electronic, or by the deliverer acknowledging completion through a software application.

Two limits that are easy to miss

  • The car. A drink in a permittee-sealed tamper-proof container, which covers every mixed drink, may not be carried in the passenger area of a motor vehicle (Section 28.1001(e)).
  • Brewpubs on a BG. The section does not let a brewpub operating on a Wine and Malt Beverage Retailer’s Permit deliver directly to customers at a location other than the licensed premises (Section 28.1001(d)).

Six situations side by side (hypothetical)

Situation Allowed? Why
MB restaurant with an FB delivers a margarita with a dinner order yes FB, food order, tamper-proof labeled container, 21-or-older driver, ID at the door
MB restaurant with an FB sells a margarita to go with no food no pickup and delivery must be part of a food order
MB bar without an FB lets a diner take home the rest of a bottle of wine ordered with a meal yes Section 28.10 allows wine ordered with food to leave the premises
MB bar without an FB sells cocktails to go no without an FB there is no Section 28.1001 authority
Wine-and-beer café on a BG sells a sealed six-pack to go yes the BG itself allows off-premises sales; no FB needed
MB restaurant with an FB delivers cocktails to a customer at another licensed bar no delivery may not go to another licensed or permitted premises

What a restaurant should check before launching

Confirm the FB is issued and current for the premises before the first to-go cocktail or delivery goes out; the Section 28.1001 authority falls away when the certificate does.

This article is general information about Texas alcoholic beverage law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and TABC rules change; confirm current requirements with the Texas Alcoholic Beverage Commission, the relevant city or county, or a licensed Texas attorney before acting.

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