HomeMy WebLinkAbout08-3497 ord64
':ORDINANCE NO. 08-3497
AN ORDINANCE AMENDING CHAPTER 3, ALCOHOLIC BEVERAGES,
AND THE ZONING ORDINANCE, ORDINANCE NO. 89-2798, OF THE
CODE OF ORDINANCES OF THE CITY OF PLAINVIEW, TEXAS,
DEFINING TERMS; PROVIDING FOR HOURS OF CONSUMPTION,
POSSESSION AND SALE OF ALCOHOLIC BEVERAGES; UNLAWFUL
SALES; LICENSE AND PERMIT FEES; PROXIMITY TO CHURCHES,
SCHOOLS, AND PUBLIC HOSPITALS; PROVIDING FOR A SCHEDULE
OF USES FOR BUSINESSES SELLING ALCOHOLIC BEVERAGES;
REPEALER; SEVERABILITY CLAUSE; CUMULATIVENESS CLAUSE;
CONFLICTS CLAUSE; EFFECTIVE DATE; AND PROVIDING FOR
PUBLICATION AND ENFORCEMENT OF SUCH ORDINANCE.
WHEREAS, Hale County, Texas had an election on November 6, 2007 for the
City of Plainview, Texas to legalize the sale of alcoholic beverages, including mixed
beverages, and the Plainview citizens majority voted to legalize the sale of such
beverages; and
WHEREAS, the proposal to amend and repeal City of Plainview, Texas
ordinances to comply with said election and the Texas Alcoholic Beverage Code was
duly presented to the Planning and Zoning Commission for its recommendation, and
they found that the use is in general conformance with the Master Plan and contains
requirements and safeguards necessary to protect adjoining property owners and
comply with the current law; and
WHEREAS, upon presenting the proposal to amend and repeal said ordinances
to the Planning and Zoning Commission, and after a public hearing, the Commission
made its recommendation which was received by the City Council; and
WHEREAS, the City of Plainview, Texas, by and through the City Council, has
the authority to amend and repeal City of Plainview, Texas ordinances to comply with
said election and the Texas Alcoholic Beverage Code; and
WHEREAS, after hearing the Planning and Zoning Commission's
recommendation and receiving public comment in a public hearing, the City Council
determined that such proposal to amend and repeal said ordinances is in general
conformance with the Master Plan of the City and contains requirements and
safeguards necessary to protect adjoining property owners and comply with current law;
and
WHEREAS, the City Council further found the request of such proposal is
consistent with the goals, policies, and future land use map of the Master Plan for the
City of Plainview, Texas; and
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WHEREAS, the City Council determined that such proposal would not be
detrimental or injurious to the public health, safety or general welfare, or otherwise
offensive to the neighborhood, and said proposal to amend and repeal said ordinances
shall be in the manner hereinafter set forth in the body of this Ordinance.
NOW, THEREFORE, The City of Plainview hereby ordains that:
SECTION I.
The City of Plainview Code of Ordinances, Chapter 3, Alcoholic Beverages, is
hereby repealed and amended as follows:
CHAPTER3
ALCOHOLIC BEVERAGES
Sec.3-1. Definitions.
For the purposes of this Article, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural number
include the singular and words in the singular number include the plural. The word
"shall" is always mandatory and not merely directory.
Alcoholic Beverages -Alcohol, or 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.
Central Business District - a compact and contiguous geographical area of a
municipality used for commercial purposes that has historically been the primary
location in the municipality where business has been transacted.
Child-Care Facility - In accordance with the Texas Human Resources Code Ann,
Section 42.002 (Vernon's 2001), this facility must be licensed, certified, or registered by
the Texas Department of Human Services 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.
Day-Care Center - In accordance with the Texas Human Resources Code Ann.,
Section 42.002 (Vernon's 2001), this facility is a child-care facility that provides care for
more than 12 children under 14 years of age for less than 24 hours a day.
Homeless Shelter - a supervised publicly or privately operated shelter or other
facility that is designed to provide temporary living accommodations to individuals who
lack a fixed regular and adequate residence.
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Open Container - A container that is no longer sealed or the meaning assigned
by the Texas Alcoholic Beverage Code Ann., Section 109.35 (Vernon's 2007).
Private School - In accordance with the Texas Alcoholic Beverage Code Ann.,
Section 109.33 (Vernon's 2007), a private school, including a parochial school, does the
following:
(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.
Public School - In accordance with the Texas Government Code Ann., Section
821.001 (Vernon's 2004), a public school is an educational institution or organization in
this state that is entitled by law to be supported in whole or in part by state, county,
school district, or other municipal corporation funds.
Sec. 3-2. Alcoholic Beverage Code Adopted.
The City of Plainview hereby adopts the Texas Alcoholic Beverage Code, which
code is made a part of this article by reference for all purposes as though fully set out
herein.
Sec. 3-3. No Vested Right Conferred; Conflict With Law Not Allowed.
The sale of alcoholic beverages is a privilege, and this chapter is not intended to
give any person a vested right to engage in such business nor is such chapter intended
to be in conflict in any manner with the provisions of the Texas Alcoholic Beverage
Code.
Sec. 3-4. Hours of Consumption, Possession, and Sale.
(a) It shall be unlawful for any person within the corporate limits of the City to
consume any Alcoholic Beverage in any public place or for any person to
possess any alcoholic beverage for the purpose of consuming the same in
such public place at any time on Sundays between the hours of 2:15 a.m. and
12:00 noon, and on all other days at any time between the hours of 2:15 a.m.
and 7:00 a.m.
(b) It shall be unlawful for any person who shall hold a retail dealer's on-premises
late hours license or mixed beverages late hours permit issued under the
provisions of the Texas Alcoholic Beverage Code to sell any Alcoholic
Beverage or offer the same for sale:
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(1) On Sunday at any time between the hours of 2:00 a.m. and 10:00 a.m.,
except that alcoholic beverages served to a customer between 10:00
a.m. and 12 noon on Sunday must be served with food to the
customer.
(2) On any day except Sunday at any time between the hours of 2:00 a.m.
and 7:00 a.m.
(c) It shall be unlawful for any person who shall not hold a retail dealer's on-
premises late hours license or a mixed beverages late hours permit issued
under the provisions of the Texas Alcoholic Beverage Code to sell any
alcoholic beverage or offer the same for sale:
(1) On Sunday at any time between the hours of midnight and 1:00 a.m.
and between 12:00 noon and midnight.
(2) On any day except Sunday at any time between the hours of 12:00
midnight and 7:00 a.m.
(d) Private clubs located within the City holding a private club late hours permit
issued by the provisions of the Texas Alcoholic Beverage Code may not
permit persons to consume or be served Alcoholic Beverages on club
premises on Sundays between the hours of 2:00 a.m. and 10:00 a.m. and on
any day except Sunday between the hours of 2:00 a.m. and 7:00 a.m. with
the provision that customers served between 10:00 a.m. and 12:00 noon on
Sunday must be served with food to the customer.
(e) Violation of the above restrictions is punishable as a violation of the Texas
Alcoholic Beverage Code.
Sec. 3-5. Unlawful Sales.
It shall be unlawful to offer for sale or to sell any Alcoholic Beverage except as
designated by the Schedule of Uses as set forth in the Zoning Ordinances.
Sec. 3-6. Certificate of Occupancy.
When applying for an original state license or state permit, any person seeking to
have a business within the City that is required to be licensed under the Texas Alcoholic
Beverage Code shall first obtain from the Building Official either a Certificate of
Occupancy or a Building Permit for the establishment.
Sec. 3-7. License and Permit Fees.
(a) Except as otherwise provided in the Texas Alcoholic Beverage Code, each
holder of a State permit or license issued pursuant to this Code shall pay to
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the City a fee equal to one-half the fee paid to the State for such permit or
license.
(b) All fees levied by this section are due and payable at the time in which the
State license and permit fees are due.
(c) Code Enforcement shall notify the Texas Liquor Control Board of any person
failing or refusing to pay the license fee and request cancellation of the
license of such person in accordance with Texas Alcoholic Beverage Code
Ann., Section 61.36 (Vernon's 2007).
Sec. 3-8. Sales Near Churches, Schools, Public Hospitals and Day Care/Child Care
Facilities.
(a) No person shall sell alcoholic beverages if the place of business is within
three hundred (300) feet of any church, public school or public hospital.
(b) No person shall sell alcoholic beverages, if the place of business is within
three hundred (300) feet of any private school, except that this paragraph
does not apply to the holder of the following:
(1) A license or permit who also holds a food and beverage certificate; or
(2) A permit for a package store.
(c) No person shall sell alcoholic beverages in a place of business within one
thousand (1,000) feet of any private school, if the City Council has by
resolution adopted a request from the governing body of the private school to
prohibit such sales, except that this paragraph does not apply to the holder of:
(1) A retail on-premises consumption permit or license if less than fifty (50)
percent of the gross receipts for the premises is from the sale or
service of alcoholic beverages; or
(2) A retail off-premises consumption permit or license if less than fifty (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 license or
permit held by a wholesaler or manufacturer's as those words are
ordinarily used and understood in the Texas Alcoholic Beverage Code,
Chapter 102; or
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(4) A license or permit issued under the Texas Alcoholic Beverage Code,
Chapters 27 (temporary and special wine and beer retailer's permit),
31 (caterer's permit), or 72 (temporary license) that operates on the
premises of the private school; or
(5) A permit for a package store.
(d) This subsection establishes additional criteria regarding the sale of alcoholic
beverages and shall apply only to a permit or license holder, under the
following chapters of the Texas Alcoholic Beverage Code, who does not hold
a food and beverage certificate: Chapter 25 (Wine and Beer Retailer's
Permit), Chapter 28 (Mixed Beverage Permit), Chapter 32 (Private Club
Registration Permit), Chapter 69 (Retail Dealer's On Premise License), or
Chapter 74 (Brewpub License). Except as provided in this subsection, no
person shall sell alcoholic beverages in a place of business within three
hundred (300) feet of a day-care or child-care facility, excluding the holder of
the following:
(1) The permit or license holder and the day-care or child-care facility are
located on different stories of a multistory building; or
(2) The permit or license holder and the day-care or child-care facility are
located in separate buildings and either the permit or license holder or
the day care center/child care facility is located on the second story or
higher of a multistory building.
A day-care or child-care facility does not apply to foster group homes, foster
family homes, family homes, agency group homes, or agency homes as
those terms are defined in the Texas Human Resources Code Ann., Section
42.002 (Vernon's 2001).
(e) The measurement of the distance between the place of business where
alcoholic beverages are sold and a church or public hospital, day-care or
child-care facility shall be along the property lines of the street fronts and from
front door to front door, and in direct line across intersections.
(f) The measurement of the distance between the place of business where
alcoholic beverages are sold and a public or private school shall be 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, except that
where the permit or license holder is located on or above the fifth story of a
multistory building, measurement shall be 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.
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(g) This section shall not be construed to permit or authorize that which is
prohibited by the Texas Alcoholic Beverage Code or any other law.
Sec. 3-9. Possession or Consumption Near Homeless Shelters or Substance Abuse
Centers.
(a) No person may possess an open container or consume an alcoholic
beverage on a public street, public alley, or public sidewalk within one
thousand (1,000) feet of the property line of a homeless shelter that is not
located in a central business district or a substance abuse treatment center
that is not located in the central business district.
(b) Special temporary events/activities/festivals approved by the City Council and
events/activities/festivals lasting no longer than three (3) days that are open
to the public for the purpose of providing entertainment/food and/or sales of
merchandise are exempt from the provisions of subsection (a).
SECTION II.
The City of Plainview Zoning Ordinance for the Code of Ordinances is hereby
repealed and amended as follows:
8.1 SCHEDULE OF USES ESTABLISHED
ATTACHED AS EXHIBIT "A"
8.3. SUPPLEMENTARY REGULATIONS FOR PRINCIPAL USES AND SPECIFIC
USES.
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Ordinance No. 08-3497 Alcoholic Beverages Page 10 of 15
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SECTION 9
SPECIAL DEFINITIONS AND EXPLANATIONS
NOTED IN USE REGULATIONS
9.2. EDUCATIONAL, INSTITUTIONAL AND SPECIAL USES
7. COUNTRY CLUB (PRIVATE):
..._.___ _ ~_.. ...._....,, ..._............., ........y ....,..., ..............~ N., ,, ~...,,,...,
. An area of twenty (20) acres or more with a
golf course, a clubhouse, and associated uses available only to private
specific membership. Such establishment includes country clubs (private)
legally authorized (bv duly issued permits from the city and state) to sell
alcoholic beverages for consumption on the premises.
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9.5. RETAIL AND SERVICE TYPE USES
5.15: DANCE HALL OR NIGHTCLUB: An establishment
wed-offering to the general public facilities for dancing and
entertainment for a fee and subject to licensing and regulation by the City.
Such establishment includes dance halls and nightclubs legally authorized
(bv duly issued permits from the city and state) to sell alcoholic beverages
for consumption on the premises.
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Ordinance No. 08-3497 Alcoholic Beverages Page 12 of 15
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5.42b: RESTAURANT no recc-rG~ie~ ~nnruni iT B,PavG_ini n~ n~wG_
T,uQni ir_u c~o~r4~ An eating establishment
. regularly open in
a bona fide manner, which is used and kept open for food service to
customers for compensation, has suitable guest seating and facilities for
the preparation and service of an assortment of foods commonly ordered
at various hours of the day or night, and serves food as a primary
business, except as stated below. As an accessory use, the
establishment may provide patrons with space for dancing or permit
patrons to dance. Such establishment includes restaurants legally
authorized (bv duly issued permits from the city and state) to sell alcoholic
beverages as a primary or secondary business for consumption on the
premises.
5.42c: RESTAURANT, 4DRIVE-IN T'~FR€~ SERVICES: An eating establishment
where customer service is primarily provided to patrons in motor vehicles.
SECTION 31
OFF-STREET PARKING AND LOADING REQUIREMENTS
31:5. OFF-STREET PARKING
31:5.2. Schedule of Off-Street Parking
Dance hall, or Nightclub:
One (1) parking space for each one hundred (100) square feet of floor
area used thereof.
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35. Shopping center: One (1) space for each two hundred (200) square feet
of floor area. The total floor area used for restaurants and cafeterias {fit
which exceeds ten percent (10%) of the
shopping center floor area, shall require additional parking to be provided
in accordance with the requirements for restaurants.
SECTION III.
All ordinances and parts of ordinances inconsistent with the provisions of this
Ordinance are repealed.
SECTION IV.
Severability is intended throughout and within this Article. If any provision,
including any section, paragraph, sentence, clause, phrase or word or the application
thereof to any person or circumstance is held invalid, the application to other persons or
under other circumstances shall not be affected thereby and the validity of this Article in
any and all other respects shall not be affected thereby. It is intended that this Article
be held inapplicable in any case if such exists, where its application would be
unconstitutional. A constitutional construction hereof is intended and shall be given.
There is no intent herein to violate either of the Texas Constitution or the Constitution of
the United States.
SECTION V.
Provisions of this Ordinance are cumulative and nothing herein shall prevent,
alter, or diminish the applicability or enforcement of other ordinances restricting,
regulating, or governing the subject matter herein.
SECTION VI.
All ordinances or portions of any ordinance of the City of Plainview, Texas in
conflict herewith, are hereby amended to conform with the provisions hereof.
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SECTION VII.
This ordinance shall be in full force and effect upon its passage and publication
as required by law.
PASSED AND APPROVED on first reading this 22"d day of January, 2008.
PASSED AND APPROVED on second reading this 12t;{ay of February, 2008.
%~
N C. ANDER$~bN, MAYOR
ATTEST:
Belinda Hinojosa, City Secreta
John Castro, Directi~ra#~~oml~nunity Services
APPROVED AS TO FORM:
Leslle Spear a rce, City Attorney
Ordinance No. 08-3497 Alcoholic Beverages Page 15 of 15
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