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26 Alcohol Beverage deliberationCITY COUNCIL AGENDA ITEM BRIEFING SHEET Submittal Date: 05/18/09 Originating Department: City Manager Presented By: City Manager Agenda Item No.: Council Date: 05/26/09 City Attorney City Clerk W. Kent McIlyar Janice Ellis 26. RECOMMENDED MOTION: Not an action item - deliberate, first reading and possibly act on an ordinance amending Chapter 3, Alcoholic Beverages, of the City of Paris Texas, Code of Ordinances to provide regulations and a permitting process for the sale of mixed beverages in restaurants by food and beverage permit holders and the sale of beer and wine for off-premises consumption only, pursuant to regulations in the Texas Alcoholic Beverage Code (TABC) POLICY ISSUE(S): Election BACKGROUND: On May 9, 2009, the citizens of Paris approved two local option propositions related to the sale of alcohol. Proposition One provided for the sale of mixed beverages in restaurants by food and beverage certificate holders. Proposition Two provided for the sale of beer and wine for off-premise consumption, which includes properly zoned retail establishments such as convenience stores and grocery stores that are not located within 300 feet of a school, church, hospital, day care center or child care facility in the city limits of the City of Paris, Texas. This ordinance provides regulations and a permitting process for the sale of mixed beverages in restaurants by food and beverage certificate holders and the sale of beer and wine for off-premise consumption only. BOARD/COMMISSION RECOMMENDATION: EXHIBITS: Ordinance and an election summary report ACTION: BUDGET INFO: ❑ Financial Report ❑ Minute Order Expense $ ❑ Departrnent Report ❑ Resolution Budgeted Amt. $ ❑ Presentation ~ Ordinance ❑ P H bli i ❑ O h y'TD Actual $ u c ear ng er t Acct. Name Acct. Number FISCAL NOTES: REVIEWED AND APPROVED BY: 0 Administration Z City Clerk ❑ Community Development ❑ EMS/IT ❑ Finance ❑ Fire ❑ Municipal Coutt Z Legal ❑ Library ❑ Police ❑ Eng./Public Wotks ❑ Utilities City of Paris ~ 000180 Revised 2/04/08 D RAFT attorney\ordwork\current\Alcoholic Beverages Amend Chpt 3 Ord 2009 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, AMENDING CHAPTER 3, ALCOHOLIC BEVERAGES, OF THE CODE OF ORDIANCES OF THE CITY OF PARIS, TEXAS; PROVIDING REGULATIONS AND PERMITTING PROCESS FOR THE SALE OF MIXED BEVERAGES IN RESTAURANTS BY FOOD AND BEVERAGE PERMIT HOLDERS AND THE SALE OF BEER AND WINE FOR OFF-PREMISES CONSUMPTION ONLY; PROHIBITING THE SALE OF BEER AND WINE IN RESIDENTIAL AREAS; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; PROVIDING A REPEALER CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE, A PENALTY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on May 9, 2009, a local option election was held in the City of Paris, Texas containing two propositions: Proposition 1"The legal sale of mixed beverages in restaurants by food and beverage certificate holders only," and Proposition 2"The legal sale of beer and wine for off-premise consumption only;" and, WHEREAS, after the canvass of the election by the Lamar County Clerk, the results of said election declared the passage of both Proposition 1 and Proposition 2 changing the regulation of the sale of alcoholic beverages within the City of Paris, Texas; and, WHEREAS, pursuant to the outcome of the local option election and in compliance with the regulations contained in the Texas Alcoholic Beverage Code, the City Council has determined that the following regulations are necessary in order to protect public health, safety, and welfare of the citizens of the City of Paris. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved. Section 2. That Chapter 3, Alcoholic Beverages, of the Code of Ordinances of the City of Paris, Texas, be, and the same is hereby amended to read in its entirety as follows: "Chapter 3 ALCOHOLIC BEVERAGES "Sec.3-1. Definitions. Unless otherwise provided herein, the words and phrases used in this chapter shall have the same meanings as ascribed to them by the Texas Alcoholic Beverage Code. -1- - 0U(al8± "Sec. 3-2. License or permit to manufacture, sell, distribute, etc. (a) It shall be unlawful for any person to manufacture, brew, distill, sell or distribute any wine, beer, liquor or other alcoholic beverage within the City, or engage in any other activity for which a license or permit is required by the Texas Alcoholic Beverage Code, without first obtaining a license or permit to do so from the City. The annual fee for each such license or permit shall be an amount equal to one-half the fee charged by the State for a license or permit to engage in a similar activity. The fee shall be paid at the time of application and on the date such permit or license is renewed with the State thereafter. (b) It shall be unlawful for any person licensed to sell alcoholic beverages at retail, other than a manufacturer or distributor, to use or display a license or to exercise any privilege granted by a license except at the place, address, premise and location for which the license is granted. "Sec. 3-3. Proximity of establishments selling alcoholic beverages to churches, schools, etc., regulated; penalty for violation. (a) Definitions. For the purposes of this section, the following terms, phrases, words and their derivations shall have the meaning prescribed to them in this subsection: (1) Alcoholic beverage means alcohol and any beverage containing more than one-half of one percent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted. (2) Child-care facility means a facility licensed, certified, or registered by the Texas Department of Human Resources to provide assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it offers. (3) Day-care center means a child-care facility that provides for more than 12 children under 14 years of age for less than 24 hours a day. (4) Dealer means and refers to any natural person or association of natural persons, trustee, receiver, partnership, corporation or other organization holding a permit for the sale of alcoholic beverages or mixed beverages under the state alcoholic beverage code and any manager, agent, servant, or employee of any of them. -2- ~ (5) Mixed beverage means one or more servings of a beverage composed in whole or part of an alcoholic beverage in a sealed or unsealed container of any legal size for consumption on the premises where served or sold by the holder of a mixed beverage permit, the holder of a daily temporary mixed beverage permit, the holder of a caterer's permit, or the holder of a private club registration permit. (6) Private school means a private school, including a parochial school, that: a. offers a course of instruction for students in one or more grades from kindergarten through grade twelve (12); and b. has more than one hundred (100) students enrolled and attending courses at a single location. (b) Sale unlawful. It shall be unlawful and an offense for any dealer within the corporate limits of the city to sell from a place of business an alcoholic beverage or mixed beverage within: (1) 300 feet of any church, public or private school, public hospital, day-care center or child-care facility; or (2) 1,000 feet of a private school if the City Council receives a request from the governing body of the private school. (c) Special exceptions, day-care centers and child-care facilities. The restrictions contained herein with respect to day-care centers and child-care facilities apply only to a permit or license holder under the Texas Alcoholic Beverage Code, Chapter 25 (wine and beer retailer's off-premise permit); Chapter 28 (mixed beverage permit); Chapter 32 (private club registration permit); Chapter 69 (retail dealer's on-premise permit); or Chapter 74 (brewpub license) who does not hold a food and beverage certificate. Said restrictions with respect to day-care centers and child-care facilities do not apply to a foster group home, foster family home, family home, agency group home, or agency home as those terms are defined by Section 42.002, Texas Human Resources Code. The restrictions herein with respect to day-care centers and child-care facilities do not apply to a permit or license holder under the Texas Alcoholic Beverage Code, who sells alcoholic beverages if: (1) the permit or license holder and the day-care center or child- care facility are located on different stories of a multistory building; or (2) the permit or license holder and the day-care center or child- care facility are located in separate buildings and either the permit or license holder or the day-care center or child-care -3- facility is located on the second story or higher of a multistory building. (d) Distance measurements. The measurement of the distance between such place of business where alcoholic beverages are sold and any 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. The measurement of distance between such place of business where alcoholic beverages are sold and a public or private school, day-care or child-care facility shall be: (1) in a direct line from the property line of the public or private school or child care facility to the property line of the place of business, and in a direct line across intersections; or (2) if the place of business where alcoholic beverages are sold is located on or above the fifth story of a multistory building, 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 place of business where alcoholic beverages are sold is located. (e) Variances. The City Council may allow variances to the distance regulation as stated herein if the City Council determines that enforcement of such regulation in a particular instance is not in the best interest of the public, constitutes waste or inefficient use of land or other resources, creates an undue hardship on an applicant for a license or permit, does not serve its intended purpose, is not effective or necessary, or for any other reason the city council, after consideration of the health, safety and welfare of the public and the equities of the situation, determines is in the best interest of the community. (o Other exceptions. (1) Subsection (b)(2) does not apply to the holder of the following permits or licenses issued under the Texas Alcoholic Beverage Code: a. a retail on-premises consumption permit or license if less than 50 percent of the gross receipts for the premises is from the sale or service of alcoholic beverages; b. a retail off-premises consumption permit or license if less than 50 percent 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; -4- ~ i!~)r~l~~ c. 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 or understood. d. a license or permit issued under Chapter 27 (temporary and special wine and beer retailer's permits); Chapter 31(caterer's permit); or Chapter 72 (temporary licenses) of the alcoholic beverage code who is operating on the premises of a private school; or e. a license or permit covering a premise where minors are prohibited from entering under Section 109.53 of the alcoholic beverage code and that is located within 1,000 feet of a private school. (2) Subsection (b)(1) does not apply to the holder of the following permits or licenses issued under the Texas Alcoholic Beverage Code: a. a license or permit who also holds a food and beverage certificate covering a premise that is located within 300 feet of a private school; or b. a license or permit covering a premise where minors are prohibited from entering under Section 109.53 of the alcoholic beverage code and that is located within 300 feet of a private school. (g) Application to existing businesses. Application to businesses in existence at the time of the effective date of this ordinance which are holders of the following permits or licenses issued under the Texas Alcoholic Beverage Code: (1) A premises which has a valid alcoholic beverage permit or license as of the effective date of this ordinance shall be deemed to satisfy the distance requirements set forth herein and for all subsequent renewals of the license or permit as well. (2) On the sale or transfer of the premises or the business on the premises in which a new original license or permit is required for the premises, the premises shall be deemed to satisfy any distance requirements as if the issuance of the new original permit or license were a renewal of a previously held permit or license. -5- WO, t'll 18 "Sec. 3-4. Sale of Alcoholic Beverages Prohibited in Residential Areas. The sale of alcoholic beverages is prohibited at any location that is within a residential zoning district or an identified portion of a Planned Development district exclusively restricted to residential uses. "Sec. 3-5. Consumption on public property, on private property commonly used by the public and in private clubs; closing hours. (a) As permitted in section 105.06 of the Alcoholic Beverage Code of the state, extended hours are hereby established within the corporate limits of the City. (b) It shall be unlawful for any person to consume or possess with intent to consume an alcoholic beverage in a public place within the corporate limits of the City on Sunday between the hours of 2;15 a.m. and 12:00 noon and on any other day between 2:15 a.m. and 7:00 a.m. Any person violating the provisions of this paragraph shall be subject to prosecution and penalty in accordance with the provisions of the Texas Alcohol Beverage Code. (c) The consumption of any alcoholic beverage on any public street, sidewalk, park, alley or other public property, or on private property commonly used by the public, within the corporate limits of the City is unlawful and is prohibited. It is specifically provided, however, that this section shall not apply to consumption of alcoholic beverages on privately owned residential parking areas or on privately owned parking lots where a fee is charged for the privilege of parking or storing a motor vehicle. The throwing of any opened container of the type generally used for alcoholic beverages from or out of any vehicle shall be prima facie evidence that the occupants thereof were then and there drinking alcoholic beverages in violation of this section." Section 4. That all provisions of the ordinances of the City of Paris, Texas in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Paris not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 5. That the repeal of any ordinance or part of ordinances affected by the enactment of this ordinance shall not be construed as abandoning any action now pending under or by virtue of such ordinance or as discontinuing, abating, modifying, or altering any penalty accruing or to accrue, or as affecting any rights of the municipality under any section or provisions of any ordinance at the time of passage of this ordinance. Section 6. That it is the intention of the City Council of the City of Paris that this ordinance, and every provision hereof, shall be considered severable, and the invalidity or -6- 1 ~ S' 8U ~ partial invalidity of any section, clause, or provisions of this ordinance shall not affect the validity of any other portion of this ordinance. Section 7. That any person violating any provision of this ordinance shall be guilty of a Misdemeanor, and upon conviction, shall be subject to a fine in accordance with provisions of Sec. 1-6 of Chapter One of the City of Paris Code of Ordinances, and each and every day's continuance of any violation of the above-enumerated sections shall constitute and be deemed a separate offense. Section 8. Introduced and read on first reading on May 26, 2009, at a regular meeting of the City Council of the City of Paris and read and passed on second reading on June 8, 2009, at a regular meeting of the City Council of the City of Paris; the same being two (2) separate regular meetings of the City Council of the City of Paris. [OR] Section 8. That by a supermajority vote of ayes and nays, the City Council voted to suspend the rule requiring two readings before adoption of this ordinance. Section 9. That this ordinance shall become effective from and after its passage of the second reading and publication as required by law. PASSED AND ADOPTED on second and final reading this 8th day of June, 2009. , Mayor ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: W. Kent McIlyar, City Attorney -7- !illeJ8/ SUMMARY REPORT Run Date:05/14/09 08:50 AM PRECINCTS COUNTED (Of 7) REGISTERED VOTERS - TOTAL BALLOTS CAST - TOTAL. . PROPOSITION 1 Vote For 1 FOR . . . AGAINST . . PROPOSITION 2 Vote For 1 FOR . . . AGAINST . . City of Paris, Texas Special Election May 9, 2009 VOTES PERCENT 7 100.00 0 3,034 1,712 56.80 1,302 43.20 1,628 53.82 1.397 46.18