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06-C Alcoholic Beverages OrdAGENDA INFORMATION SHEET PROJECT: Ordinance regulating the sale of alcoholic beverages adjacent to schools, churches, hospitals, daycare centers and child-care facilities. BACKGROUND: The State of Texas vests authority to regulate the sale and distribution of alcoholic beverages in the Texas Alcoholic Beverage Commission ("the Commission"). In very limited instances, the State has conferred on local authorities certain rights to enact such regulations. Under the Texas Alcoholic Beverage Code ("the Code") Sections 109.33 and 109.331, the State has granted municipalities the authority to regulate by ordinance the sale of alcoholic beverages within 300 feet of churches, schools, hospitals and child care centers. The only such regulation currently in effect in the City of Paris is found in the zoning ordinance, Sections 12-102 and 12-103, which sections prohibit the issuance of specific use permits to package stores and grocery stores which sell wine and beer within 300 feet of any church, public school, public hospital, or public park. Since Paris is "dry," and thus there are no such business within the City, the zoning ordinance has no practical effect. Nor does it apply to private clubs, which are the sole legal outlets for the distribution of alcoholic beverages in the City. DESCRIPTION: The attached proposed ordinance creates an offense punishable by a fine of up to $2,000.00 for a dealer to sell alcoholic beverages or mixed beverages from a place of business within 300 feet of any church, public school, private school (defined as a private school that has more than 100 students and that offers courses for one or more grade from kindergarten through grade 12), public hospital, day-care center or child-care center. The governing body of a private school (as defined) may petition the Council to extend the boundary to 1,000 feet from the private school. The ordinance tracks statutory language with respect to definitions, rules for measuring distances and certain exceptions. While under the Code, private clubs merely "serve," rather than "sell" alcoholic beverages, Section 109.331, in limiting the types of permits issued by the Commission which can be regulated with respect to distances from child-care facilities, specifically states that the regulations do apply to businesses holding private club permits. By implication, the regulations will also apply to the other listed institutions as there is no such limiting language in 109.33 (sales near schools, churches and hospitals). The ordinance, as per state law, essentially grandfathers in existing businesses. Chief of Police Karl Louis believes that the proposed ordinance "allows the minimum safe distance for the safety, health and welfare of our citizens and children who might be in close proximity to an establishment which sells alcoholic beverages. This is an already recognized standard established by the state." RECOMMENDED ACTION: Consideration and adoption of the attached proposed ordinance. STAFF CONTACT: Chief Karl Louis; Stephanie H. Harris, Assistant City Attorney; Larry W. Schenk, City Attorney COST: There is no cost associated with the adoption and enforcement of this ordinance. The ordinance will merely provide another tool to law enforcement to combat the higher incidence of crime associated with areas in which alcoholic beverages are available. The cost of enforcement will be absorbed in the expense of enforcing state law and ordinances generally. COUNCIL DATE: Consider at City Council's November 12, 2001, regular meeting. ADDITIONAL MATERIALS: Attached draft ordinance; attached memorandum of Chief Louis. DRAFT HARRI S\ORDINANC E SkAlcoholRegFinal November 9, 2001 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, ADOPTING SECTION 3-4 TO CHAPTER 3 OF THE CODE OF ORDINANCES OF THE CITY OF PARIS, ENTITLED "PROXIMITY OF ESTABLISHMENTS SELLING ALCOHOLIC BEVERAGES TO CHURCHES, SCHOOLS, ETC., REGULATED; PENALTY FOR VIOLATION"; PROVIDING FORA PENALTY NOT TO EXCEED $2,000.00; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Texas Alcoholic Beverage Code provides in Sections 109.33 and 109.331 that a municipality may enact regulations prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a church, public school, public hospital, day-care center or child-care facility; WHEREAS, there is an increased incidence of criminal activity, including but not limited to disorderly conduct, assault, public intoxication, driving while intoxicated, robbery and other criminal offenses, in the immediate vicinity of establishments which sell and/or serve alcoholic beverages; WHEREAS, said increased incidence of criminal activity unduly endangers children and other individuals in the vicinity of establishments which sell or serve alcoholic beverages; and WHEREAS, in the opinion of law enforcement officials, 300 feet is the minimum distance necessary to protect children and other citizens who use or attend churches, public schools, public hospitals, day-care centers and child-care centers from said increased criminal activity; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved. Section 2. That Section 3-4 of Chapter 3 of the Code of Ordinances of the City of Paris, Paris, Texas, be, and the same is hereby adopted, to read as: -1- "Sec. 3-4. 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) Alcohohc 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) 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. "(3) 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. "(4) 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. "(5) Child-care facifity 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. "(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 12; and -2- "(B) has more than 100 students enrolled and attending courses at a single location. "(b) Sale un/awful. 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 facihties. 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 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: -3- "(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. "(f) 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; "(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 -4- "(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. "(h) Penalties. Any person violating the terms and provisions of this chapter shall be deemed guilty of a misdemeanor and shall be punished by a fine not to exceed two thousand dollars ($2,000.00). Each day that such violation continues shall be a separate offense. This penalty shall be cumulative of all other remedies. Such violation shall be deemed a violation of a provision governing zoning and public health." Section 3. That it is hereby declared to be the intention of the City Council of the City of Paris that the sections, paragraphs, sentences, clauses, and phrases of this ordinance are severable and, if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this ordinance, and such remaining provisions shall remain in full force and effect. -5- Section 4. That all ordinances or parts of ordinances in conflict herewith are hereby expressly repealed. Section 5. That this ordinance shall become effective on December 1,2001. PASSED AND ADOPTED this 12th day of November, 2001. ATTEST: Michael J. Pfiester, Mayor Mattie Cunningham, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney -6- TO: STEPHANIE HARRIS, ASST. CITY ATTORNEY FROM: KARL LOUIS, CHIEF OF POLICE SUBJECT: REQUEST FOR ORDINANCE (LIQUOR SALES) DATE: 'NOVEMBER 8, 2000 I am requesting an ordinance be drafted to mirror section 109.33 of the Texas Alcoholic Beverage Code allowing incorporated cities to enact ordinances to disallow the sale of alcoholic beverages within 300 feet of a church, public school, or public hospital. I believe that this allows the minimum distance for the safety, health and welfare of our citizens and children who might be in close proximity to an establishment which sells alcoholic beverages. This is an already recognized standard established by the state. Also, if needed I would like you to consider TABC section 101.75 which makes it illegal to possess an open container or consume an alcoholic beverage on a public street, public alley or public sidewalk within 1000 feet from the property line of a school with children from kindergarten through 12~ grade. I am unsure if we need an ordinance for this statute, but if we do, let's go ahead and enact these together. If I can assist you, please let me know. Thanks in advance for your help and consideration. Karl Louis Chief of Police Paris Police Department Paris, Texas