DEPARTMENT: Development Services
DEPARTMENT HEAD: Roderick Sanchez
COUNCIL DISTRICTS IMPACTED: 9
SUBJECT:
Alcohol Variance Case AV2016003
SUMMARY:
Consideration of a request granting a Variance to City Code Section 4-6 and waiving the requirements of Sections 4-6(c)(1), 4-6(c)(2), 4-6(c)(3), 4-6(c)(4), 4-6(d)(1), 4-6(d)(6) and 4-6 (e)(1) of the City Code and authorizing the sale of alcoholic beverages on Lot 10, Block 2, NCB 16332 located at 18866 Stone Oak Parkway for on-premise and off-premise consumption within three-hundred (300) feet of Cornerstone Christian School - Kinder Campus, a private school in Council District 9.
BACKGROUND INFORMATION:
Title 4, Chapter 109, Subchapter B, §109.33(e) authorizes municipalities to establish a variance process if it is determined that the enforcement of the 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. Pursuant to this enabling legislation, the provisions of Chapter 4, §4-6(c) of the City Code were established by the City of San Antonio.
The TABC authorizes municipalities to establish variance criteria from the distance requirements and §4-6(c) of San Antonio's City Code states that with City Council authorization, the sale of alcoholic beverages at a location within three hundred (300) feet of a school may be granted, provided that the City Council makes the following findings:
1) The sale of alcoholic beverages had been permitted within the last two (2) years at the location in question;
According to the applicant alcohol has not previously been sold on the property within the last two (2) years. The applicant does not meet the two (2) year location requirement and is requesting a waiver of this requirement. However, the applicant noted that the Texas Alcoholic Beverage Commission issued a wine and beer retailer’s permit on December 8, 2015.
2) The discontinuance of the sale of alcoholic beverages was not a result of a violation of law;
There is no previous alcohol service and a waiver of this requirement is also requested.
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
The property at 18866 Stone Oak Parkway is located within three hundred (300) feet of the property line of Cornerstone Christian School - Kinder Campus. The applicant has requested a variance to this provision.
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.
The applicant has noted that the use of the property will be for a liquor store and will generate more than 30% annual gross revenues in alcohol sales. Additionally, the sale of alcohol is for on-premise and off-premise consumption of beer and wine. The applicant has requested a variance to this provision.
The TABC authorizes municipalities to establish variance criteria from the provisions of §4-6 (d).
1) Requiring the submission of certified documentation from the Texas Alcohol and 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.
According to the applicant alcohol sales for on-premise and off-premise consumption of beer and wine has not occurred on the property. This is a new service that the liquor store would like to provide. Expiration is not applicable to this request.
6) Requiring the submission of 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.
a. As this is a proposed liquor store, thirty (30) percent of the establishment’s annual gross revenues are generated by the sale of alcoholic beverages. The applicant requests a variance to this provision.
b. Thirty (30) percent of the annual gross revenues are to be generated by the sale of alcohol. The applicant requests a variance to this provision.
Additionally, the applicant seeks waivers and a variance for three activities that would constitute violations of §4-6(e)(1): 1) selling alcoholic beverages for off-premise consumption, 2) selling alcoholic beverages for on-premise consumption of alcoholic beverages that exceed more than thirty (30) percent of the annual gross revenues of the establishment, and 3) violating any other condition imposed by city council.
ISSUE:
Currently, the sale of alcoholic beverages at 18866 Stone Oak Parkway Suite #105 will violate Chapter 4, §4-6 of the City Code and Title 4, Chapter 109, Subchapter B, §109.33(a)(1) of the Texas Alcoholic Beverage Code. The applicant is requesting a variance to allow the on-premise sale of alcohol within three hundred (300) feet of Cornerstone Christian School - Kinder Campus, which is accredited and recognized by the Texas Commission of Education.
§4-6(c)(3) mandates that alcohol cannot be sold within three hundred (300) feet of a public school.
The existing building where the proposed restaurant and on-site consumption of alcohol is located is approximately 212 feet measured property to property line from Cornerstone Christian School - Kinder Campus.
§4-6(e)(1) includes three activities or actions that would constitute a violation of any granted variance: 1) selling alcoholic beverages for off-premise consumption, and 2) to selling alcoholic beverages for on-premise consumption of alcoholic beverages that exceed more than thirty (30) percent of the annual gross revenues of the establishment.
Alcohol is proposed to be sold by the liquor store for on-premise and off-premise consumption. This activity will generate 30% or more in annual gross revenue for the establishment. The applicant has requested a variance to this provision.
ALTERNATIVES:
The City may opt not to waive the requested waivers and variances, prohibiting the sale of alcohol for on-premise and off-premise consumption at the proposed commercial business located at 18866 Stone Oak Parkway Suite #105.
FISCAL IMPACT:
None.
RECOMMENDATION:
Staff Analysis includes the following findings and factors:
1. The school facility is less than 300 feet from the subject property (approximately 212 feet property line to property line and approximately 1,189 feet measured from door to door).
***All listed distances are approximate and were measured in a straight line between nearest points, using the City’s online zoning map.***
2. Stone oak Parkway Suite is a commercial corridor that includes established retail and commercial developments including, but not limited to, restaurants, hotels and a night club with sales of alcohol for on-premise consumption, as well as other similar retail/commercial uses.
3. The variance and waivers are triggered by the City’s Code requirements and the sale of alcohol (beer and wine) within 300-feet of the school and the liquor store sales which will generate 30% or more annual gross revenue for the establishment.
Should City Council choose to waive the provisions of §4-6(c)(1-4), §4-6(d)(1) and §4-6(d)(1) of the City Code, staff recommends the following conditions:
1) That the sale of alcoholic beverages is to be limited to the proposed liquor store.
2) All alcohol sales are for on-premise and off-premise consumption of beer and wine.
3) That the alcohol sales are permitted as follows: Monday through Thursday from 11:00 a.m. to 11:00 p.m., Friday and Saturday from 11:00 a.m. to 12:00 a.m. and Sunday from 12:00 p.m. to 11:00 p.m.
4) That the authorization for the sale of alcoholic beverages shall not transfer to different owners or land uses.
5) That such authorization shall terminate in the event of non-operation or non-use of the identified establishment for a period of twelve (12) or more successive calendar months.