DEPARTMENT: Development Services
DEPARTMENT HEAD: Michael Shannon
COUNCIL DISTRICTS IMPACTED: Council District 2
SUBJECT:
Alcohol Variance Case AV2019001
SUMMARY:
Consideration of a request granting a Variance to City Code Section 4-6 and waiving the requirements of the City Code and authorizing the sale of alcoholic beverages on Lot 1, Block 25, NCB 15790, located at 5203 Eisenhauer Road for off-premise consumption within three-hundred (300) feet of the Pre-K 4 SA - East Education Center, a public education institution, in Council District 2.
BACKGROUND INFORMATION:
The Texas Alcoholic Beverage Code Ann. 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;
The sale of alcoholic beverages has been permitted within the last two (2) years at this location.
2) The discontinuance of the sale of alcoholic beverages was not a result of a violation of law;
There are no recorded violations of alcohol sales at the noted property.
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 5203 Eisenhauer Road is located within three hundred (300) feet of the property line of the Pre-K 4 SA - East Education Center. The applicant has requested a variance from this provision.
4) The proposed sale of alcoholic beverages would be for off-premise consumption and constitute no more than thirty (30) percent of the establishment's annual gross revenues.
The applicant has stated that alcohol sales will not exceed 30% of total revenues. The applicant has indicated that sales of alcoholic beverages will be for off-premise consumption.
The TABC authorizes municipalities to establish variance criteria from the provisions of §4-6 (d).
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. The responsibility of providing documentation verifying that no more than thirty (30) percent of the proposed uses annual gross revenues are generated by the sale of alcoholic beverages is the responsibility of the business owner. Thus it is stated as such in this document.
b. No more than thirty (30) percent of the annual gross revenues are to be generated by the sale of alcohol.
ISSUE:
Currently, the sale of alcoholic beverages at 5203 Eisenhauer Road 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 off-premise sale of alcohol within three hundred (300) feet of the Pre-K 4 SA - East Education Center, 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 current convenience store is approximately 105 feet from the existing school property, measured property line to property line in accordance with TABC measurement standards.
§4-6(e)(1) includes three activities or actions that would constitute a violation of any granted variance: 1) selling alcoholic beverages for on-premise consumption, 2) selling alcoholic beverages for off-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.
Alcohol will be sold for off-premise consumption only (no on-premise consumption) at the future convenience store. The applicant is to sell alcohol as specified by the Texas Alcoholic Beverage Commission (TABC) requirements.
ALTERNATIVES:
The City may opt not to waive the requested waivers and variances, prohibiting the sale of alcohol for off-premise consumption at 5203 Eisenhauer Road.
FISCAL IMPACT:
None.
RECOMMENDATION: Approval of this request is at the discretion of City Council.
Staff Analysis includes the following findings and factors:
1. The education center is located across the street from the convenience store property and is less than 300 feet from the subject property (approximately 105 feet measured property line to property line in accordance with TABC measurement standards).
***All listed distances are approximate and were measured in a straight line between nearest points, using the City’s online zoning map.***
2. The door-to-door measurement from the convenience store to the entrance of the education center is approximately 1,127 feet.
3. The sale of alcohol is for off-premise consumption only.
4. The subject property has been used as a convenience store, with alcohol sales, prior to the establishment of the Pre-K 4 SA - East Education Center and has shown no negative impact to the safety and welfare of the public.
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 Convenience Store.
2) All alcohol sales are for off-premise consumption (beer and wine sales only).
3) That the authorization for the sale of alcoholic beverages shall not transfer to different owners or land uses.
4) 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.
5) That the sales of alcohol for off-consumption be restricted to Monday-Friday from 7:00AM - 12:00AM, Saturday from 7:00AM - 1:00AM, and Sunday from 12:00PM - 12:00AM.