§ 4-6. Distances from church, school or hospital.

(a)

Exceptions to minimum distance requirement. No alcoholic beverages shall be sold for consumption on or off the premises where sold, when such premises are located within three hundred (300) feet of any church, school or hospital, the measurements to be made in the manner prescribed by V.T.C.A., Alcoholic Beverage Code, 109.33(b), provided this section shall not apply:

(1)

Where the premises for which application is made was being used for the sale of alcoholic beverages for off premises consumption at the time the school, church or hospital was established and such use has been continuous to the date of application; or

(2)

Where the premises for which application is made was being used for the sale of beer or wine for on-premises consumption at the time the school, church or hospital was established and such use has been continuous to the date of application; and

(3)

Where the premises is a church or hospital and the applicant for a beer or wine license is the church or hospital on said premises, or where the applicant has the approval of the church or hospital in writing.

(b)

Method of measurement. As to any dealer who held a license or permit before September 1, 1983, in a location where a regulation under this section was in effect on that date, for purposes of subsection (a), the measurement of the distance between the place of business or the dealer and the school shall be along the property lines or the street fronts and from front door to front door, and in a direct line across intersections. This subsection applies only as long as the place of business is continuously in operation from that date, whether or not under the same license or permit.

(c)

Variance. City council may authorize the sale of alcoholic beverages at a location within three hundred (300) feet of a public school, as that distance is determined by the manner of measurement prescribed by V.T.C.A. Alcoholic Beverage Code § 109.33(b), and in effect at the time that such authorization is sought provided that city council makes findings as follows:

(1)

The sale of alcoholic beverages had been permitted within the last two (2) years at the location in question;

(2)

The discontinuance of the sale of alcoholic beverages was not a result of a violation of law;

(3)

A variance is necessary because the manner of measurement, as currently prescribed in V.T.C.A. § 109.33(b), has changed and as a result thereof, the premises in question has been determined to be within three hundred feet (300) feet of a public school; and

(4)

The proposed sale of alcoholic beverages would be for on premise consumption and constitute no more than thirty (30) percent of the establishment's annual gross revenues.

(d)

Variance procedure.

(1)

The applicant shall submit to the city clerk a completed variance request form, certified documentation from the Texas Alcoholic Beverage Commission (establishing that an alcoholic beverage license had been issued for the location where the variance is sought and that the date of expiration of the license was less than two years before the date of the variance request), and the variance application fee of one hundred dollars ($100.00);

(2)

The city clerk shall set the variance for hearing on the first available city council agenda after the passage of thirty (30) days from the date the request is received;

(3)

The city clerk shall forward copies of the variance application and supporting documentation to the director of building inspections who shall make a recommendation to city council regarding the variance request;

(4)

Not later than ten (10) days prior to the date of the hearing, the director of building inspections may send written notice of the variance request to the affected public school;

(5)

If at the conclusion of the public hearing the city council makes affirmative findings, as provided in subsection (c), a variance may be granted; provided that city council may, with the consent of the applicant, place additional conditions on the variance, where such conditions are in the public interest; and

(6)

If the council approves the variance request, the applicant shall on an annual basis submit to the department of building inspections the necessary documentation to verify that no more than thirty (30) percent of the establishment's annual gross revenues are generated by the sale of alcoholic beverages.

(e)

Variance violation.

(1)

It shall be a violation of the variance granted by city council to sell alcoholic beverages for off premise consumption; for on premise consumption of alcoholic beverages that exceed more than thirty (30) percent of the annual gross revenues of the establishment, or to violate any other condition imposed by city council.

(2)

The director of building inspections may request the city attorney to seek any and all remedies available at law and or equity to assure the conditions imposed on the granting of the variance are enforced, including the discontinuance of the sale of alcoholic beverages.

(Code 1950, §§ 30-7, 30-19; Ord. No. 23434, § 1 8-16-56; Ord. No. 24181, § 1, 1-3-57; Ord. No. 25667, § 1, 10-17-57; Ord. No. 26485, § 1, 6-12-58; Code 1959, §§ 5-11, 5-23; Ord. No. 33167, § 1, 3-25-65; Ord. No. 44246, § 1, 8-22-74; Ord. No. 68849, § 1, 2-16-89; Ord. No. 88724, § 1, 10-22-98)

State law reference

Authority for above restrictions, V.T.C.A., Alcoholic Beverage Code, § 109.33.