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R-2015-163 2015-09-21 FAILEDRESOLUTION NO. R2015-163 A Resolution of the City Council of the City of Pearland, Texas, authorizing a variance to Chapter 4, Alcoholic Beverages, of the City's Code of Ordinances, to allow the Starbucks store located at 11520 Shadow Creek Parkway permission to sell alcoholic beverages within 300 feet of a public school (Nolan Ryan Jr. High). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That Starbucks has submitted a petition for a distance variance attached hereto as Exhibit "A". Section 3. That the City Council hereby approves a variance to Chapter 4. Alcoholic Beverages, of the City's Code of Ordinances, to allow the Starbucks store located at 11520 Shadow Creek Parkway permission to sell alcoholic beverages within 300 feet of a public school (Nolan Ryan Jr. High). PASSED, APPROVED and ADOPTED this the 21 ST day of September. A.D.. 2015. ATTEST: YOUNG LORFING, TRMC CITY SECRETARY APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY TOM REID MAYOR 1395 KFC CAVE ROAD. STE. Io; .\uSIIN. 11 XAS 7871( Via Federal Express Young Lorfing, City Secretary City of Pearland 3519 Liberty Dr. Pearland, TX 77581 RESOLUTION NO. R2015-163 Exhibit "A" CLE?I10NI. )11.97 1.0300 Mf Ii1.IQI kI A\\'.C.UNI Martin Frost & Hill August 27, 2015 Re: Request for Waiver of Ordinance Sec. 4-2 Prohibiting Sale of Alcoholic Beverages within 300 feet of Public School Dear Ms. Lorfing: Please accept this letter and supporting documentation as a request for waiver of the minimum distance regulations related to the sale of alcoholic beverages near a public school set forth in Section 4-2 of the City of Pearland's Code of Ordinances. Section 4-2 prohibits alcoholic beverage sales within 300 feet of a public school measured in a direct line from the school's property line to the property line of the place of business, and Section 4-6 authorizes city council to grant a variance to Section 4-2. This request is submitted by Starbucks Corporation ("Starbucks") for its store located at 11520 Shadow Creek Parkway in Pearland (the '`Store"). As shown on the enclosed map, the parcel where the Store is located shares a boundary line with a parcel owned by Alvin Independent School District (the "District") where Nolan Ryan Junior High (the "School") is located. Starbucks is seeking a variance for the Store as related to the School. The Store's parcel is also near but over 300 feet measured property line to property line from Marek Elementary School, which located on a separate District -owned parcel. Starbucks is seeking a variance so the Store can be included as part of its new Evenings program being launched in select cities in Texas. The Evenings program introduces beer, wine, and a new Evenings food menu at these locations. 'Ihe program is being implemented in response to customcr feedback for more options to unwind at Starbucks and is designcd to create a new occasion for customers to relax and connect with friends in the evening without going to a bar or making a restaurant reservation. In addition to the new beer, wine, and food offerings, Starbucks Evenings stores will incorporate flexible stating to accommodate intimate conversations, small groups, and larger parties, including book clubs and community groups. Starbucks will serve beer and winc only at its Evenings stores, but, as a result of TABC regulations and the local option in Pearland, must obtain a TABC Mixed Beverage Restaurant Permit with Food and Beverage Certificate ("RM permit") at the Store. RM permits authorize sales of beer. wine, and distilled spirits for on -premise consumption; however, Starbucks has no plans to offer spirits at this Store or any of its Evenings stores. Based upon sales data from Evenings stores in other locations, Starbucks anticipates beer and wine sales will account for 2 - 3% of total sales at the Store, and, to qualify for an RM permit, Starbucks must make food available at all times beer and wine is sold. City of Pearland August 27, 2015 Page 2 Starbucks understands the purpose of the restriction on sales near schools is to reduce the likelihood of alcoholic beverage sales to minors. Starbucks takes its responsibilities as a good corporate citizen seriously and believes its alcohol beverage training will prevent school children from purchasing and consuming alcoholic beverages in our stores. Therefore, we believe a waiver for this store is appropriate. The Evenings menu will typically be available after 4 p.m. on weekdays and noon on weekends and wine and beer will be served for in-store consumption only. Starbucks is implementing a comprehensive alcohol service training program for its partners (employees) and field management teams. The training focuses on preventing sales to minors, to already intoxicated customers, and during prohibited times and days. The City of Pearland can be sure that Starbucks will enforce the same exacting compliance standards at this Store that are already in place at locations where the Evenings program is active. Attached is a screenshot from the TABC's website listing several on and off -premise consumption TABC permits issued to nearby businesses on Shadow Creek Parkway, many of which are also in close proximity to the School. Contrary to many of these businesses, Starbucks will not advertise alcoholic beverage prices outside the Store and the in-store alcohol advertisements will be minimal and primarily limited to menus. Exposure to alcohol sales and consumption at the Store would be no more, and probably much less, than what minors would experience at these businesses. Prohibiting wine and beer sales at the Store would result in lost sales to the Store and places Starbucks at a competitive disadvantage to neighboring businesses. That result is unfair to Starbucks and the Store's patrons. I have reached out to District Superintendent Buck Gilcrease to discuss Starbucks, the School, and the variance request; however, at the time of this filing, I have been unable to make direct contact. Starbucks intends to establish an open line of communication with the District and School and is open to any questions or concerns about Starbuck's proposed activities. For these reasons, Starbucks respectfully requests city council grant a variance from the City's minimum distance regulations related to the sale of alcoholic beverages near a public school. I have included a USB drive containing .pdfs of the maps, but please let me know if you require any additional information for the variance application. 1 can be reached by phone at (512) 614-2009 or by e-mail at khill; Chapter 4 ALCOHOLIC BEVERAGES* Sec. 4-1. Permit required; fees. Sec. 4-2. General requirements. Sec. 4-3. Measurement of distance. Sec. 4-4. Noncontiguous operations. Sec. 4-5. Hours of sale. Sec. 4-6. Variances. *Editor's note—Section 1 of Ord. No. 1502, adopted Sept. 22, 2014, repealed former Ch. 4, and enacted new provisions as set out herein. Former Ch. 4, §§ 4-1--4-5, 4-14-4 19, pertained to similar subject matter, and derived from Ord. No. 17, §§ 1-5, adopted March 24, 1960; Ord. No. 191, § 1, adopted March 16, 1970; Ord. No. 531, §§ 1, 2, adopted Dec. 22, 1986; Ord. No. 531-1, §§ 1, 2, adopted July 13, 2009. State law references—Alcoholic beverages, V.T.C.A., Alcoholic Beverage Code ch. 1 et seq.; local option elections, V.T.C.A., Alcoholic Beverage Code ch. 251. Supp No 8 CD4:1 ALCOHOLIC BEVERAGES § 4-3 Sec. 4-1. Permit required; fees. No person shall manufacture, sell, distrib- ute or store any alcoholic beverage within the city without first obtaining a permit from the city secretary. Prior to the issuance of a permit pursuant to this chapter, the appli- cant for the permit shall pay to the city such fees as are authorized by state law. (Ord. No. 1502, § 1, 9-22-14) Sec. 4-2. General requirements. (a) Churches and public hospitals. The sale of alcoholic beverages by a dealer whose place of business is within three hundred (300) feet of a church or public hospital is prohibited. (b) Public and private schools within three hundred (300) feet. The sale of alcoholic bev- erages by a dealer whose place of business is within three hundred (300) feet of a public school or a "private school" as that term is defined in V.T.C.A., Alcoholic Beverage Code § 109.33, is prohibited. This section does not apply to the holder of: (1) A license or permit who also holds a food and beverage certificate covering a premises that is located within three hundred (300) feet of a private school; or (2) A license or permit covering a prem- ises where minors are prohibited from entering under V.T.C.A., Alcoholic Bev- erage Code § 109.53, and that is lo- cated within three hundred (300) feet of a private school. (c) Day care centers and child care facili- ties. The sale of alcoholic beverages by a dealer whose place of business is within three hundred (300) feet of a day care center or Supp No 8 child care facility, as those terms are defined by V.T.C.A., Human Resources Code § 42.002 is prohibited. (1) This section does not apply to a per- mit or license holder who sells alco- holic beverages if: a. The permit or license holder and the day care center or child care facility are located on different stories of a multistory building; or b. The permit or license holder and the day care center or child care facility are located in separate buildings and either the permit or license holder or the day care center or child care facility is located on the second story or higher of a multistory building. (2) This section applies only to a permit or license holder under the following chapters of the V.T.C.A., Alcohol Bev- erage Code Ch. 25 (Wine and Beer Retailer's Permit), Ch. 28 (Mixed Bev- erage Permit), Ch. 32 (Private Club Registration Permit), Ch. 69 (Retail Dealer's On -Premises License), or Ch. 74 (Brewpub License) who does not hold a food and beverage certificate. (3) This section does not apply to a foster group home, foster family home, fam- ily home, agency group home, or agency home as those terms are defined by V.T.C.A., Human Resources Code § 42.002. (Ord. No. 1502, § 1, 9-22-14) Sec. 4-3. Measurement of distance. (a) Churches and public hospitals. The measurement of the distance between the place of business where alcoholic beverages are sold and a church or public hospital shall CD4:3 § 4-3 PEARLAND CODE be along the property lines of the street fronts and from front door to front door, and in a direct line across intersections. (b) Public and private schools, day care centers and child care facilities. The measure- ment of the distance between the place of business where alcoholic beverages are sold and the public or private school, day care center, or child care facility 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 intersec- tions; or (2) 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 business is located if the place of business is located on or above the fifth story of a multistory building. (3) For any permit or license covering premises on September 1, 1983, pur- suant to V.T.C.A., Alcoholic Beverage Code § 109.33, the measurement of the distance between the premises 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 a direct line across inter- sections. (Ord. No. 1502, § 1, 9-22-14) Sec. 4-4. Noncontiguous operations. A mixed beverage permit holder who holds a food and beverage certificate may desig- nate, as part of the permit holder's premises, a secured noncontiguous area located on a public sidewalk adjoining the premises, so long as the area designated meets the follow- ing requirements: (a) The area does not encroach upon any dedicated public right-of-way or por- tion thereof; Supp. No. 8 (b) The area is separated from the permit holder's premises only by a sidewalk or portion that is adjacent to said premises; (c) The area is directly across the adjoin- ing sidewalk from the permit holder's premises and does not reduce or ob- struct the road frontage of any estab- lishment located adjacent to the per- mit holder. (Ord. No. 1502, § 1, 9-22-14) Sec. 4-5. Hours of sale. The holder of a permit authorizing the on -premise consumption of alcohol shall com- ply with the provisions of V.T.C.A., Alcoholic Beverage Code §§ 105.03 and 105.05, except that such permittee's shall be allowed to apply for a late hours permit to sell alcohol between midnight and 2:00 a.m. on any day. (Ord. No. 1502, § 1, 9-22-14) Sec. 4-6. Variances. City council may grant a variance to regu- lation under section 4-2, if the governing body determines that enforcement of the reg- ulation 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 neces- sary, or for any other reason, after consider- ation of the health, safety, and welfare of the public and the equities of the situation, de- termines is in the best interest of the com- munity. (Ord. No. 1502, § 1, 9-22-14) CD4:4