By Yarbrough H.B. No. 2961
75R9016 PAM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to local regulation of distance requirements for
1-3 businesses selling alcoholic beverages near certain institutions
1-4 and areas.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 109.33, Alcoholic Beverage Code, is
1-7 amended to read as follows:
1-8 Sec. 109.33. SALES NEAR CERTAIN INSTITUTIONS AND AREAS
1-9 [SCHOOL, CHURCH, OR HOSPITAL]. (a) The commissioners court of a
1-10 county may enact regulations applicable in the unincorporated area
1-11 of [areas in] the county [outside an incorporated city or town,]
1-12 and the governing body [board] of a municipality [an incorporated
1-13 city or town] may enact regulations applicable in the municipality
1-14 [city or town,] prohibiting the sale of alcoholic beverages by a
1-15 dealer whose place of business is within:
1-16 (1) 300 feet of a church or other regular place of
1-17 worship, public or private school, day-care center, child-care
1-18 facility, adult day-care facility, [or] public hospital, nursing
1-19 facility, playing field or park regularly used by children under 16
1-20 years of age, or an area determined by the governing body of a
1-21 municipality or the commissioners court of a county used primarily
1-22 as a residential neighborhood; [or]
1-23 (2) 1,000 feet of a public school, if the
1-24 commissioners court or the governing body receives a request from
2-1 the board of trustees of a school district under Section 38.007,
2-2 Education Code; or
2-3 (3) 1,000 feet of a private school, day-care center,
2-4 or child-care facility, if the commissioners court or governing
2-5 body receives a request from the owner of the school, center, or
2-6 facility.
2-7 (b) The measurement of the distance between the place of
2-8 business where alcoholic beverages are sold and an institution or
2-9 area described by Subsection (a)(1) [the church or public hospital
2-10 shall be along the property lines of the street fronts and from
2-11 front door to front door, and in direct line across intersections.
2-12 The measurement of the distance between the place of business where
2-13 alcoholic beverages are sold and the public schools] shall be in a
2-14 direct line from the nearest property line of the institution or
2-15 area [of the public school] to the nearest property line of the
2-16 place of business[, and in a direct line across intersections].
2-17 (c) Every applicant for an original alcoholic beverage
2-18 license or permit for a location [with a door by which the public
2-19 may enter the place of business of the applicant] that is within
2-20 1,000 feet of [the nearest property line of] a public or private
2-21 school, day-care center, or child-care facility, measured in a
2-22 direct line from the nearest property line of the school, center,
2-23 or facility to the nearest property line of the place of business
2-24 [along street lines and directly across intersections], must give
2-25 written notice of the application to officials of the [public]
2-26 school, center, or facility before filing the application with the
2-27 commission. The notice must be sent by certified mail, return
3-1 receipt requested, and must be properly addressed to the school,
3-2 center, or facility. A copy of the notice and the certified return
3-3 receipt or notification of the refusal or failure to claim the
3-4 delivery must be submitted to the commission with the application.
3-5 This subsection [Subsection (c)] does not apply to a permit or
3-6 license covering a premise where minors are prohibited from
3-7 entering the premises under Section 109.53.
3-8 (d) As to any dealer who held a license or permit on
3-9 September 1, 1983, in a location where a regulation under this
3-10 section was in effect on that date, for purposes of Subsection (a),
3-11 but not Subsection (c), of this section, the measurement of the
3-12 distance between the place of business of the dealer and a public
3-13 school shall be along the property lines of the street fronts and
3-14 from front door to front door, and in direct line across
3-15 intersections.
3-16 (e) The commissioners court of a county or the governing
3-17 body [board] of a municipality [city or town] that has enacted a
3-18 regulation under Subsection (a) of this section may also allow
3-19 variances to the regulation if the commissioners court or governing
3-20 body determines that enforcement of the regulation in a particular
3-21 instance is not in the best interest of the public, constitutes
3-22 waste or inefficient use of land or other resources, creates an
3-23 undue hardship on an applicant for a license or permit, does not
3-24 serve its intended purpose, is not effective or necessary, or for
3-25 any other reason the court or governing body [board], after
3-26 consideration of the health, safety, and welfare of the public and
3-27 the equities of the situation, determines is in the best interest
4-1 of the community.
4-2 (f) Subsections [Subsection] (a)(2) and (3) do [does] not
4-3 apply to the holder of:
4-4 (1) a retail on-premises consumption permit or license
4-5 if less than 50 percent of the gross receipts for the premises is
4-6 from the sale or service of alcoholic beverages;
4-7 (2) a retail off-premises consumption permit or
4-8 license if less than 50 percent of the gross receipts for the
4-9 premises, excluding the sale of items subject to the motor fuels
4-10 tax, is from the sale or service of alcoholic beverages; [or]
4-11 (3) a wholesaler's, distributor's, brewer's,
4-12 distiller's and rectifier's, winery, wine bottler's or
4-13 manufacturer's permit or license, or any other license or permit
4-14 held by a wholesaler or manufacturer as those words are ordinarily
4-15 used and understood in Chapter 102; or
4-16 (4) a beer and wine retailer's off-premise permit or
4-17 package store permit and related permits or licenses issued for the
4-18 same location if:
4-19 (A) the permit was issued before September 1,
4-20 1997; or
4-21 (B) an original beer and wine retailer's
4-22 off-premise permit or package store permit is issued as the result
4-23 of the sale of an ongoing business that was in existence before
4-24 September 1, 1997, for which a beer and wine retailer's off-premise
4-25 permit or package store permit was issued if the business remains
4-26 in continuous operation.
4-27 (g) In this section:
5-1 (1) "Adult day-care facility" has the meaning assigned
5-2 by Section 103.003, Human Resources Code.
5-3 (2) "Day-care center" and "child-care facility" have
5-4 the meanings assigned by Section 42.002, Human Resources Code.
5-5 (3) "Nursing facility" has the meaning assigned by the
5-6 Texas Nursing Facility Administrators Licensure Act (Article 4512q,
5-7 Revised Statutes).
5-8 SECTION 2. The importance of this legislation and the
5-9 crowded condition of the calendars in both houses create an
5-10 emergency and an imperative public necessity that the
5-11 constitutional rule requiring bills to be read on three several
5-12 days in each house be suspended, and this rule is hereby suspended,
5-13 and that this Act take effect and be in force from and after its
5-14 passage, and it is so enacted.