Commission Agenda Item No. 6
Exhibit A

STATE PARK RULES OF CONDUCT
SALE AND PUBLIC CONSUMPTION/DISPLAY OF ALCOHOLIC BEVERAGES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §59.134, concerning Rules of Conduct in State Parks.  The proposed amendment would allow the sale of alcohol by concessionaires and the public display and consumption of alcoholic beverages purchased from concessionaires within state parks when authorized by the executive director of the department in limited situations as part of a concession agreement or special event.

        Under current rules, it is an offense for any person to sell or publicly display or consume an alcoholic beverage within a state park; however, the department operates several facilities, such as Indian Lodge at Fort Davis State Park, and Lone Star Lodge at Ray Roberts State Park that offer lodging and meals to park visitors and the general public. These facilities provide a unique visitor experience and must generate revenue to sustain operations. Parks and Wildlife Code, §13.015, authorizes the department to promote visits and enhance revenue at parks and to operate or grant contracts to operate concessions in state parks, as well as to make regulations governing the granting or operating of concessions. The department has determined having authority to allow concessionaires to sell alcoholic beverages at such facilities would enable the department to address situations in which it is appropriate to promote visitation and resulting increased revenue by eliminating a competitive disadvantage compared to other dining establishments.

        Additionally, the department is from time to time approached by entities wishing to utilize state parks for the staging of fundraisers, benefits, and similar special events to benefit the department. The department believes that such special events requests can be leveraged to directly benefit state parks individually or collectively. The department has determined that in some situations, it would be beneficial to allow staging of special events at state parks, as specifically approved by the executive director on a case-by-case basis, during which it would be lawful for concessionaires to sell alcoholic beverages and for participants in the special events to display and consume alcoholic beverages.

        The department would like to make it abundantly clear that the proposed amendment would not authorize the sale, display, and consumption of alcoholic beverages generally in the state park system, but only at specific events that the executive director had determined will promote and/or benefit state parks.

        The proposed amendment would establish the conditions under which alcoholic beverages could be lawfully sold, displayed, or consumed in a state park, which would take the form of exceptions to the current absolute ban on the sale of alcoholic beverages and the public consumption or display on state parks.

        Proposed new paragraph (2) would   stipulate that alcoholic beverages could be sold and publicly consumed or displayed if done in accordance with the terms and conditions of a special event authorized by the director or in an area of a state park where such consumption or display is either authorized by the director or pursuant to a concession agreement. The department does not intend for the sale or public consumption or display of alcoholic beverages to be permitted in any fashion other than by order of the director or under the terms of a contract with a concessionaire. Therefore, the rule stipulates such. Additionally, the proposed amendment would require any sales of alcoholic beverages to be conducted within the timeframes authorized in the concession agreement or authorization issued by the director and in accordance with all applicable state and local laws applicable to the sale of alcoholic beverages, which is necessary to clearly establish that such authorizations and agreements are to specifically delineate the scope and duration of any exception to park rules governing the public sale, consumption, or display of alcoholic beverages and to assure that all activities involving alcoholic beverages will be in accordance with laws regulating such activities.

        Finally, the proposed amendment would stipulate that the department will not authorize any activity under this paragraph that is determined to conflict or be inconsistent with the mission of the department. As stated previously in this preamble, the department’s intent is to allow the sale and public consumption or display of alcoholic beverages in conjunction with activities that benefit the department, individual parks, and the department’s mission. If for any reason the department determines that a prospective event or concession is not in the best interests of these goals, the event or concession will not be approved.

2. Fiscal Note.

        Brent Leisure, State Parks Division Director, has determined that for each of the first five years that the amendment as proposed is in effect, there will be fiscal implications to state government as a result of administering or enforcing the rule.  Those benefits will be positive, because the department’s concession agreements stipulate payments to the department, typically a percentage of sales or a flat fee; however, because the sale of alcoholic beverages at state parks has never been allowed, the department has no historical data upon which to base an estimate of revenue increase. Therefore, the department considers, based on the assumption that dining and lodging facilities located at state parks, if authorized to sell and serve alcoholic beverages, will experience an increase in visitation as a result of offering alcoholic beverages, and that benefits and special events on state parks will result in alcohol sales by concessionaires that do not currently occur, the increase in revenue to the department could range from thousands of dollars to tens of thousands of dollars and perhaps more. Additionally, there is the possibility of financial contributions to the department by the sponsors of special events and activities, which also cannot be quantified at this time because they are not known.

        There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

        Mr. Leisure also has determined that for each of the first five years that the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be additional revenue enhancement for the mission of the state park system.

        There will be no adverse economic effect on persons required to comply with the rule as proposed.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that the rule will not result in adverse economic impacts to small businesses, micro-businesses, or rural communities, and if anything will result in positive economic impacts. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (E) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will create a new regulation (to allow the sale, consumption, and display of alcoholic beverages in state parks);

                 (6) not expand or repeal an existing regulation, but will limit the current absolute prohibition on the sale consumption, and display of alcoholic beverages in state parks;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.