HOUSE DOCKET, NO. 3896        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4135

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Mike Connolly

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act providing for immediate and long-term relief for restaurants and bars in response to the COVID-19 pandemic.

_______________

PETITION OF:

HOUSE DOCKET, NO. 3896        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4135

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act providing for immediate and long-term relief for restaurants and bars in response to the COVID-19 pandemic.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 40A of the General Laws is hereby amended by inserting after section 9C, as appearing in the 2018 Official Edition, the following section:-

Section 9D. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Commission”, the alcoholic beverages control commission established by section 70 of chapter 10.

“Outdoor table service”, restaurant service that includes food prepared on-site and under a food establishment permit issued by a municipal authority pursuant to 105 CMR 590.00 that is served to seated diners outside the restaurant building envelope, whether on a sidewalk, patio, deck, lawn, parking area or other outdoor space.

(b) Notwithstanding any other section of this chapter, any special permit, variance or other approval issued thereunder or any general or special law to the contrary, a city or town may approve a request for expansion of outdoor table service, including in the description of licensed premises as described in subsection (c), or an extension of an earlier granted approval issued under section 4 of the governor’s COVID-19 Order No. 35 or section 1 of the governor’s COVID-19 Order No. 50. Before approving the request, the mayor, board of selectmen or other chief executive officer, as established by charter or special act, shall establish the process for approving the requests. The process shall not be required to comply with the notice and publication provisions of section 11. An approval pursuant to this section may be exercised immediately upon filing of notice thereof with the city or town clerk, without complying with any otherwise applicable recording or certification requirements.

(c) Pursuant to subsection (b), a local licensing authority may grant approval for a change in the description of the licensed premises for the purpose of permitting outdoor alcohol service as the local licensing authority deems reasonable and proper, and issue an amended license to existing license holders, without further review or approval from the commission prior to issuance. Upon approval of an amended license, the local licensing authority shall provide notice of the amended license to the commission. Nothing in this section shall prevent the commission from exercising the commission’s enforcement authority over an amended license.

(d) Before approving any request to extend an earlier granted approval issued under section 4 of the governor’s COVID-19 Order No. 35 or section 1 of the governor’s COVID-19 Order No. 50, a city, town or local licensing authority may modify the scope of the approval as the city, town or local licensing authority deems proper and appropriate including, but not limited to, modifying the terms of an earlier granted approval to address potential issues with snow removal, pedestrian traffic or similar concerns.

SECTION 2. Chapter 93 of the General Laws is hereby amended by adding the following section:-

Section 115. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

"Covered establishment", a restaurant or other eating or drinking establishment offering same-day food or drink for sale in a single commercial transaction through any third-party delivery service platform, with less than 25 retail locations within the commonwealth.

"Customer", an individual using a third-party delivery service platform to place an online order.

"Online order", an order for food or drinks placed by a customer through a third-party delivery service platform provided by a third-party delivery service company for pickup or delivery in the commonwealth.

"Purchase price", the menu price publicly offered on the third-party delivery service platform by a covered establishment. The purchase price shall not include any taxes, gratuities or other fees that may make up the total cost charged to the customer for an online order.

"Third-party delivery service company", a corporation, partnership, sole proprietorship or other entity qualified to do business in the commonwealth that is engaged in facilitating same-day delivery or pickup of food and beverages through a third-party delivery service platform for 20 or more separately owned and operated covered establishments.

"Third-party delivery service platform", any online-enabled application, software, website or system offered or utilized by a third-party delivery service company to facilitate the sale of food and beverages prepared by, and the same-day delivery or same-day pickup of food and beverages from, covered establishments.

(b) Notwithstanding any general or special law to the contrary, no third-party delivery service company shall charge a covered establishment a delivery fee per online order for the use of its services and fees other than a delivery fee that totals more than 15 per cent of the purchase price of the online order. No third-party delivery service company shall reduce the compensation rates paid to the delivery service driver, or garnish gratuities, as a result of this section. 

(c) This section shall preempt, supersede or nullify any inconsistent, contrary or conflicting local law, ordinance, rule or regulation relating to third-party delivery service platforms and third-party delivery service companies fees, including with respect to any agreements with covered establishments using third-party delivery service companies.

(d) A violation of this section shall be an unfair and deceptive trade practice in violation of chapter 93A.

SECTION 3. Section 12 of chapter 138 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by adding the following paragraph: –

Notwithstanding any provision of this section or any other general or special law to the contrary, an establishment licensed to sell alcoholic beverages or only wines and malt beverages on-premises may sell wine or malt beverages only for off-premises consumption subject to the following conditions: (i) the wine or malt beverage shall not be sold to a person under 21 years of age; provided, however, that any delivery of wine or malt beverages for off-premises consumption shall not be made without verification that the person receiving the order has attained 21 years of age; (ii) the wine shall be sold in its original, sealed container and the malt beverage shall be sold in a sealed container; (iii) the wine or malt beverage shall be sold as part of the same transaction as the purchase of food; provided, however, that any order that includes wine or malt beverages shall be placed not later than the hour of which the establishment is licensed to sell alcohol or 12:00 midnight, whichever time is earlier; (iv) a customer shall be limited to 192 ounces of malt beverage and 1.5 liters of wine per transaction; and (v) the wine or malt beverages shall be sold at the same price for on-premises consumption and for off-premises consumption.

SECTION 4. (a) There shall be a special legislative commission established pursuant to section 2A of chapter 4 of the General Laws to examine repealing restrictions on the offer and sale of discounted alcoholic beverages by persons licensed pursuant to chapter 138 of the General Laws.

(b) The special legislative commission shall consist of: the house and senate chairs of the joint committee on community development and small businesses, who shall serve as co-chairs; 1 member of the house of representatives, who shall be appointed by the speaker of the house of representatives; 1 member of the senate, who shall be appointed by the senate president; 1 person appointed by the governor, who shall have experience or expertise related to alcohol licensing; 4 members of geographically diverse business improvement districts, Main Streets organizations or chambers of commerce, jointly appointed by the co-chairs; the president and chief executive officer of the Massachusetts Restaurant Association, Inc. or their designee; 1 person with industry expertise in alcohol distribution, jointly appointed by the co-chairs; 1 member of Massachusetts Citizens for Happy Hour; and the executive director of the Massachusetts affiliate of Mothers Against Drunk Driving or their designee.

(c) The special legislative commission shall: (i) review and evaluate state and federal laws, regulations and legal advisories regarding the promotion and discounted sale of alcoholic beverages, particularly in Illinois; (ii) analyze how changes to the Massachusetts laws might aid restaurants and bars in their economic recovery from the effects of the COVID-19 pandemic; (iii) examine how any proposed changes may be enacted with a primary focus on public safety, including but not limited to the incorporation of ride sharing services and other technology, messaging and training; (iv) assess changing trends in the workplace, including the likelihood of expanded “work from home” policies and how current trends may impact future business patterns at restaurants and bars; (v) consider the needs of different regions of the commonwealth and different types of restaurants and bars within the context of the overall hospitality industry; and (vi) assess the potential impacts casinos have on nearby restaurant and bar alcohol sales.

(d) The commission shall submit its report together with recommendations for legislation, if any, to the clerks of the house of representatives and the senate not later than April 1, 2022.