(a) No person shall sell alcoholic beverages if the place of business is within 300 feet of any church, public school or public hospital.
(b) No person shall sell alcoholic beverages if the place of business is within 300 feet of any private school, except that this subsection (b) does not apply to the holder of:
(1) A license or permit who also holds a food and beverage certificate; or
(2) A permit for a package store.
(c) No person shall sell alcoholic beverages if the place of business is within 1,000 feet of any private school if the city council has by resolution adopted a request from the governing body of the private school to prohibit such sales, except that this subsection (c) does not apply to the holder of:
(1) A retail on-premises consumption permit or license if less than 50% of the gross receipts for the premises is from the sale or service of alcoholic beverages;
(2) A retail off-premises consumption permit or license if less than 50% of the gross receipts for the premises, excluding the sale of items subject to the motor fuels tax, is from the sale or service of alcoholic beverages;
(3) A wholesaler’s, distributor’s, brewer’s, distiller’s and rectifier’s, winery, wine bottler’s or manufacturer’s permit or license, or any other license or permit held by a wholesaler or manufacturer as those words are ordinarily used and understood in Tex. Alcoholic Beverage Code Chapter 102;
(4) A license or permit issued under Tex. Alcoholic Beverage Code Chapter 27 (temporary and special wine and beer retailer’s permit), Tex. Alcoholic Beverage Code Chapter 31 (caterer’s permit) or Tex. Alcoholic Beverage Code Chapter 72 (temporary license) who is operating on the premises of the private school; or
(5) A permit for a package store.
(d) The measurement of the distance between the place of business where alcoholic beverages are sold and a church or public hospital shall be along the property lines of the street fronts and from front door to front door, and in direct line across intersections.
(e) The measurement of the distance between the place of business where alcoholic beverages are sold and a public or private school shall be in a direct line from the property line of the public or private school to the property line of the place of business and in a direct line across intersections, except that where the permit or license holder is located on or above the fifth story of a multistory building, measurement shall be in a direct line from the property line of the public or private school to the property line of the place of business, in a direct line across intersections, and vertically up the building at the property line to the base of the floor on which the permit or license holder is located. As to any dealer who held a license or permit issued by the Texas alcoholic beverage commission and the city on September 1, 1983, in a location where a regulation under this section was in effect on that date, the measurement of the distance between the place of business and a public school shall be along the property lines of the street fronts and from front door to front door, and in direct line across intersections.
(f) (1) The city council may allow a variance to this section if it determines that the enforcement of the regulation in a particular instance is not in the best interests of the public, constitutes waste or inefficient use of land or other resources, creates an undue hardship on the applicant for a license or permit, does not serve its intended purpose, or is not effective or necessary, or that a previous permit was issued for the premises in error and enforcement of the regulation would be inequitable, or for any other reason the city council determines, after consideration of the health, safety and welfare of the public and the equities of the situation, that the variance is in the best interest of the community. No variance may be granted under this subsection (f) except after a public hearing for which notice has been given. Notice of a request for a variance from subsections (a) or (b) above shall be given to owners of property within 300 feet of the business. Notice of a request for a variance from subsection (c) above shall be given to owners of real property within 1,000 feet of the business. The notice area for a variance request relating to a public hospital or church shall be measured in a direct line from the front door of the place of business. The notice area for a variance request relating to a public or private school shall be measured in a direct line from the property line of the place of business. The notice shall be sent by regular United States mail not less than ten days before the date set for hearing, to all such owners who have rendered their property for city taxes as the ownership appears on the last approved city tax roll.
(2) When an application has been denied by the city council or when the applicant has withdrawn a request after the giving of public notice, no new application for a variance shall be accepted by the city or scheduled for a hearing within period of 12 months from the date of a denial or withdrawal unless the variance request is denied without prejudice.
(g) If the city secretary certifies that a premises satisfies the requirements regarding distance from churches, public or private schools and public hospitals at the time an alcoholic beverage license or permit is granted by the Texas alcoholic beverage commission for the premises, the premises shall be deemed to satisfy the distance requirements for all subsequent renewals of the license or permit, unless the premises no longer complies with the exceptions set out in subsections (b) and (c) above, including without limitation cancellation of the food and beverage certificate or sale of alcoholic beverages exceeding 50% of gross revenues. On the sale or transfer of the premises or the business on the premises for which a new Texas alcoholic beverage commission license or permit is required, the premises shall be deemed to satisfy the distance requirements as if the issuance of the new license or permit were a renewal of the previously held license or permit. If an alcoholic beverage license or permit issued by the Texas alcoholic beverage commission expires or is terminated and a bona fide application for a new license or permit for the premises is not filed with the Texas alcoholic beverage commission within one year thereafter, or if the use of the premises is changed to a use that does not involve the sale of alcoholic beverages, the provisions of this section shall not apply, and the premises shall be subject to the distance regulations set out above for all subsequent applications.
(h) For purposes of this section, a
PRIVATE SCHOOL means a private school, including a parochial school, that offers a course of instruction for students in one or more grades from kindergarten through grade 12 and has more than 100 students enrolled and attending courses at a single location.
(i) This section shall not apply where a public or private school or public hospital is located within the central business zoning district or within the following mixed-use or form-based zoning districts:
(1) Near Southside;
(2) Panther Island; or
(3) West 7th Urban Village.
(1964 Code, § 5-4) (Ord. 9036, § 1, passed 2-21-1984; Ord. 11975, §§ 1, 2, passed 5-30-1995; Ord. 12109, § 1, passed 8-29-1995; Ord. 14657, § 3, passed 6-12-2001; Ord. 17124, § 1, passed 8-29-2006; Ord. 20781-06-2013, § 1, passed 6-4-2012, eff. 6-11-2013; Ord. 22336-08-2016, § 1, passed 8-2-2016)
Statutory reference:
Authority of city to control sale of alcoholic beverages within three hundred feet of any church, public school or public building, see Tex. Alcoholic Beverage Code Annotated § 109.33