§ 3-2. Location of dealer's premises near church, school or hospital.

(a)

It shall be unlawful for any dealer to sell alcoholic beverages within the corporate limits of the city where the place of business of such dealer is within 300 feet of any church, public elementary, junior high or high school, or public hospital or within 300 feet of a "private school" as that term is defined in Section 109.33 of the Texas Alcoholic Beverage Code. It shall be unlawful for any dealer to sell alcoholic beverages in any area designated by the city council, as provided in subsection (e) below, as an "alcohol-free school zone." The measurement of the distance between the place of business where alcoholic beverages are sold and the church, public hospital, public school, or private school shall be made as provided in Section 109.33 of the Texas Alcoholic Beverage Code. This section shall be administered in a manner that is consistent with Section 109.33 of the Texas Alcoholic Beverage Code and shall not apply to any alcoholic beverage license or permit to which that section is inapplicable. The provisions of this subsection shall not apply to the operation of a grocery store.

(b)

The provisions of subsection (a) of this section shall not apply to any place of business actually operated by a dealer on April 24, 1940, and continuously thereafter under a license or permit provided for in the Texas Alcoholic Beverage Code so long as such license or permit remains in full force and effect in the name of such dealer for the particular place of business so operated and is promptly renewed from year to year or is transferred strictly as authorized in subsection (c) of this section. Except for transfers made strictly as authorized in subsection (c) of this section, in the event such license or permit is permitted to lapse, or is transferred to a different person or is suspended or cancelled for any cause, or in the event such dealer ceases to operate such place of business, either temporarily or permanently, then such place of business shall cease to be excepted from the provisions of this section. The provisions of this subsection shall apply only to the extent that the premises remains at the same address at which it was situated on April 24, 1940.

(c)

The application of the distance requirements of subsection (a) of this section to subsequent renewals of a license or permit or to the sale or transfer of premises or the business on the premises for which a new original license or permit is required shall be as provided in Section 109.59 of the Texas Alcoholic Beverage Code.

(d)

In any prosecution under this section, the provisions of subsections (b), (c), (f), (g), and (h) of this section shall be regarded as defenses.

(e)

Following receipt of a written request from the board of trustees of a school district for the designation of an alcohol-free school zone, the city council may designate areas within 1,000 feet of public schools as "alcohol-free school zones," as provided in Section 109.33 of the Texas Alcoholic Beverage Code and Section 38.007 of the Texas Education Code. Following receipt of a written request from the governing body of a private school for the designation of an alcohol-free school zone, the city council may designate areas within 1,000 feet of the private school as an alcohol-free school zone. Requests for designation shall be filed with the city secretary and shall be presented to city council as soon as practicable following their filing. Designations under this subsection may be made by city council motion.

(f)

The provisions of subsection (a) shall not apply to the operation of a restaurant and/or bar that is associated with a hotel, subject to each of the following criteria:

(1)

The hotel must be situated within the "central business district," as defined in section 3-3 of this Code;

(2)

The hotel must have a total project cost per room of $100,000.00, or more, and must continuously meet each of the following criteria:

a.

Have 80 or more separately rentable guest sleeping accommodations;

b.

Have breakfast, lunch, and dinner meal service available to the public on the premises during normal meal periods;

c.

Have an average daily room rental rate of $100.00 or more; and

d.

Have 15 hours or more of on premises room service on a daily basis.

(3)

The restaurant and/or bar must be operated within the same structure that principally houses the guest sleeping accommodations of the hotel and must be an integral part of the hotel's operations; this requirement shall not be construed to preclude the operation of a restaurant by another person acting under a license or business agreement with the hotel's owner or operator, but a bar must be operated by the hotel's owner or, if the hotel is not operated by the owner, then by the person primarily responsible for the overall operation and management of the hotel; and

(4)

The restaurant or bar shall:

a.

Take access from the lobby or interior corridors of the hotel; a restaurant may in addition to the lobby or interior access have direct public access to the exterior of the hotel structure but a bar may have no direct exterior access, except for "exit only" emergency egress doors if required for compliance with building and fire codes;

b.

Have no signage that is placed upon or visible from the exterior of the hotel that references or suggests the existence of a bar or advertises or suggests the availability of alcoholic beverages within a bar or restaurant;

c.

Not have any alcohol bottles, beer taps, alcohol service equipment, bars of the type typically associated with the service of alcohol by a bartender, alcohol related signage, or any other indicia of the sale or service of alcohol that may be viewed from the exterior of the hotel through windows, doorways, or other openings; however, this provision shall not preclude the service of alcohol in unmarked or covered containers or barware at patrons' tables in response to customer service orders; and

d.

Not have any outside seating or service areas; this requirement shall not be construed to preclude an interior courtyard restaurant or bar that is completely surrounded by the hotel and is not visible in any manner from the exterior of the hotel.

(g)

The provisions of subsection (a) shall not apply to the operation of a restaurant as related to its proximity to a public school, subject to the following criteria:

(1)

The restaurant may have no signage that is placed upon or visible from the exterior that references or suggests the existence of or availability of alcohol on the premises; and

(2)

The restaurant may have no outside seating or service area in which alcohol is served; this requirement shall neither preclude an interior courtyard that is surrounded by walls and is not visible in any manner from the exterior nor preclude a sidewalk cafe under section 40-10.1 of this Code, provided that the sidewalk cafe area is not a part of the alcohol premises for purposes of the State alcohol license or permit and that no alcohol is served or consumed in the sidewalk cafe area.

For purposes of the application of this subsection, the term "restaurant" shall be limited to a premises operating under a food and beverage certificate issued by the Texas Alcoholic Beverage Commission. Operation of a restaurant under the provisions of this subsection shall require written approval of the director of planning and development, which shall be granted upon demonstration of compliance with the foregoing requirements. Application for an approval shall be made by the applicant for the alcohol license or permit for the premises, who shall additionally be joined by the owner of the land upon which the restaurant will be situated if he is not the same person who will hold the alcohol licenses or permits. The approval shall be in the form of a covenant enforceable by the city that shall run with the land upon which the restaurant will be situated and shall be conditioned upon full and continuing compliance with all requirements of this subsection for the duration of the alcohol license or permit. The covenant shall be executed by the applicants and duly recorded in the real property records of the county at the expense of the applicants. The director of planning and development may issue rules that are consistent with the requirements of this subsection for the administration of its provisions. No certification that may be required from the city by the Texas Alcoholic Beverage Commission or any other authority for the issuance of any alcohol permit or license shall be provided until all requirements of this subsection have been completed.

The provisions of this subsection shall not affect any alcohol premises that otherwise qualifies for an alcohol license or permit under the other provisions of this section.

(h)

The provisions of this subsection (h) shall only be applicable within mixed land use/entertainment zones established by city council. Any such zone shall be at least ten acres or ten city blocks in size and shall be characterized by the following:

(1)

High density mixed land use development, including uses such as residential, commercial, retail, institutional, and entertainment with a predominance of multi-story and multi-tenant buildings.

(2)

Special public development interests, such as may be characterized by or associated with a tax increment reinvestment zone, improvement district, enterprise zone, historic district, transit corridor, or contractual street amenities development program.

Within a zone established under this subsection, a street level alcohol premises may be situated without regard to the other requirements and provisions of subsection (a), provided that not more than two other alcohol premises exists at street level in the same block face. In this subsection, a "block face" is the area on both sides of a city street block between two intersections. Alternatively, if three premises already exists at street level in the same block face, then additional premises may exist, but only if they are concealed; for this purpose and consistent with any applicable rules promulgated as provided below, concealment shall require that the additional premises be situated in the basement or on the second or a higher story of a building and have no signage or other indicia of the availability of alcohol that is visible from the street level.

The provisions of this subsection shall not affect any alcohol premises that otherwise qualifies for an alcohol license or permit under the other provisions of this section. The director of planning and development may issue rules that are consistent with the requirements of this subsection for the administration of this subsection. Without limitation, the rules shall address requirements for compliance with this subsection and the priority between alcohol license and permit applications in case two or more applications are received for street level locations in the same block face. The rules may require the applicant for the alcohol license or permit, joined by the owner of the land upon which it is situated, to execute and record in the real property records of the county a covenant that is enforceable by the city to ensure compliance with this section and the director's rules.

(Code 1968, § 4-2; Ord. No. 81-1237, § 1, 6-30-81; Ord. No. 83-1249, § 1, 8-16-83; Ord. No. 93-1326, § 1, 10-20-93; Ord. No. 96-368, §§ 1—3, 4-17-96; Ord. No. 01-832, § 1, 9-12-01; Ord. No. 03-1319, § 3, 12-23-03; Ord. No. 07-227, § 14, 2-14-07; Ord. No. 2014-9, § 3, 1-8-2014)