City refused to allow me operate a club close to school even though it had been a club for years.

Full Question:

I have a building that has always been a club so I spent money to open it after it had been closed for almost a year. Now the city will not give ma a permit because now it is too close to the same school that had been there for many years. 
11/25/2016   |   Category: Alcohol » Schools   |   State: Texas   |   #27163

Answer:

The Texas Alcoholic Beverage Code allows Cities to enact regulations dealing with the sale of alcohol within a certain distance of schools and other places like a church. They can prohibit the sale within 300 feet of a public or private school, or may increase it to 1000 feed under certain conditions.

A City or County are not required to enact these ordinances. But if they do adopt them the City can enforce them.  They can also grant variances from the ordinances.

In your case we assume there is an ordinance dealing with the location of an establishment that sells alcohol in relation to a school. The question is whether it applies to your premises. This requires that you review the provisions of the ordinance to determine what it says about discontinuation of use and how that effects you.  Also, if the premises was in existence before the City enacted the ordinance then it may have been grandfathered regardless of distance from a school and allowed to operate. When it was closed the City may be contended that it lost it's grandfather status. Zoning regulations may also come into play as to what is allowed in certain zoning districts.

Please review section 109.33 below carefully for all provisions relating to this.

There may be a provision of the Texas Alcoholic Beverage Code that applies to your situation. It generally provides that if a permit is issued for a premises and later an ordinance or law is enacted that would have prohibited the permit, any renewal of the permit must be allowed.  

It also provides that if the premises is sold and a new permit is required of the new owner, it is deemed to satisfy the requirements and a permit must be issued. However, this provision does not apply to a public school prohibition except under limited circumstances.

Sec. 109.59.  APPLICATION OF DISTANCE REQUIREMENTS.  (a)  If at the time an original alcoholic beverage permit or license is granted for a premises the premises satisfies the requirements regarding distance from schools, churches, and other types of premises established in this code and any other law or ordinance of the state or a political subdivision of the state in effect at that time, the premises shall be deemed to satisfy the distance requirements for all subsequent renewals of the license or permit.
(b)  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.
(c)  Subsection (b) does not apply to the satisfaction of the distance requirement prescribed by Section 109.33(a)(2) for a public school, except that on the death of a permit or license holder or a person having an interest in a permit or license Subsection (b) does apply to the holder's surviving spouse or child of the holder or person if the spouse or child qualifies as a successor in interest to the permit or license.
(d)  Subsection (a) does not apply to the satisfaction of the distance requirement prescribed by Section 109.33(a)(2) for a public school if the holder's permit or license has been suspended for a violation occurring after September 1, 1995, of any of the following provisions:
(1)  Section 11.61(b)(1), (6)-(11), (13), (14), or (20);  or
(2)  Section 61.71(a)(5)-(8), (11), (12), (14), (17), (18), (22), or (24).

Added by Acts 1993, 73rd Leg., ch. 934, Sec. 93, eff. Sept. 1, 1993.  Amended by Acts 1995, 74th Leg., ch. 260, Sec. 8, eff. May 30, 1995.



ALCOHOLIC BEVERAGE CODE
TITLE 4. REGULATORY AND PENAL PROVISIONS
CHAPTER 109. MISCELLANEOUS REGULATORY PROVISIONS
SUBCHAPTER A. SALVAGED AND INSURED LOSSES

Sec. 109.33.  SALES NEAR SCHOOL, CHURCH, OR HOSPITAL.  
(a)  The commissioners court of a county may enact regulations applicable in areas in the county outside an incorporated city or town, and the governing board of an incorporated city or town may enact regulations applicable in the city or town, prohibiting the sale of alcoholic beverages by a dealer whose place of business is within:

(1)  300 feet of a church, public or private school, or public hospital;
(2)  1,000 feet of a public school, if the commissioners court or the governing body receives a request from the board of trustees of a school district under Section 38.007, Education Code;  or
(3)  1,000 feet of a private school if the commissioners court or the governing body receives a request from the governing body of the private school.

(b)  The measurement of the distance between the place of business where alcoholic beverages are sold and the 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 the distance between the place of business where alcoholic beverages are sold and the public or private school shall be:

(1)  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;  or
(2)  if the permit or license holder 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 permit or license holder is located.

(c)  Every applicant for an original alcoholic beverage license or permit for a location with a door by which the public may enter the place of business of the applicant that is within 1,000 feet of the nearest property line of a public or private school, measured along street lines and directly across intersections, must give written notice of the application to officials of the public or private school before filing the application with the commission.  A copy of the notice must be submitted to the commission with the application.  This subsection does not apply to a permit or license covering a premise where minors are prohibited from entering the premises under Section 109.53.

(d)  As to any dealer who held a license or permit on September 1, 1983, in a location where a regulation under this section was in effect on that date, for purposes of Subsection (a), but not Subsection (c), of this section, the measurement of the distance between the place of business of the dealer and a public or private school 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 commissioners court of a county or the governing board of a city or town that has enacted a regulation under Subsection (a) of this section may also allow variances to the regulation if the commissioners court or governing body determines that 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 court or governing board, 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)  Subsections (a)(2) and (3) do not apply to the holder of:

(1)  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;
(2)  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;  or
(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 Chapter 102.

(g)  Subsection (a)(3) does not apply to the holder of:

(1)  a license or permit issued under Chapter 27, 31, or 72 who is operating on the premises of a private school;  or
(2)  a license or permit covering a premise where minors are prohibited from entering under Section 109.53 and that is located within 1,000 feet of a private school.

(h)  Subsection (a)(1) does not apply to the holder of:

(1)  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
(2)  a license or permit covering a premise where minors are prohibited from entering under Section 109.53 and that is located within 300 feet of a private school.

(i)  In this section, "private school" means a private school, including a parochial school, that:

(1)  offers a course of instruction for students in one or more grades from kindergarten through grade 12;  and
(2)  has more than 100 students enrolled and attending courses at a single location.

 

Acts 1977, 65th Leg., p. 526, ch. 194, Sec. 1, eff. Sept. 1, 1977.  Amended by Acts 1983, 68th Leg., p. 4038, ch. 629, Sec. 1, eff. Sept. 1, 1983;  Acts 1995, 74th Leg., ch. 260, Sec. 7, eff. May 30, 1995;  Acts 2001, 77th Leg., ch. 388, Sec. 2, eff. May 28, 2001.