Variance to City Alcohol Distance Regulations
The Texas Alcoholic Beverage Code is the ultimate authority on the sale of alcohol in Texas. Each county and city in Texas is given the authority under section (109.33) of the Texas Alcoholic Beverage Code to adopt local ordinances prohibiting the sale of alcohol (by some permit holders) within 300ft of churches, schools, daycares, residences, and hospitals. They may further regulate the hours of sale for beer in a residential area, or the sale of alcoholic beverages in major metropolitan areas within 1000 feet of a public or private school. The TABC code even lays out how measurements must be taken by local officials. For example, the measurement to a nearby school is from property-line to property-line. conversely, the measurement to churches and public hospitals is from front-door to front-door.
If the local officials incorrectly conducted the measurement used as the basis for refusing to certify a TABC application, a business can request a hearing before the County Judge to dispute how the measurement was conducted. TABC also requires applicants for TABC permits to provide written notices to residents and schools under some circumstances.
While the TABC Code does not require a city or county to adopt ordinances related to distance, if the city or county chooses to adopt an ordinance authorized under 109.33, the TABC Code also specifies that the city or county may grant a variance to the distance ordinance if the 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." See Texas Alcoholic Beverage Code Section 109.33(e).
There are very few cities in Texas that have not enacted alcohol distance ordinances, and knowing how a city alcohol ordinance may affect the ability to sell alcohol at a potential location is imperative for Texas businesses before entering into a lease. If there are distance related ordinances in place, it could mean many additional steps must be taken before a TABC application may be certified by local officials and before a permit is issued by the TABC. Each city and/or county has different processes in place to request a variance and the process can be quite a daunting task, especially when you have so many other areas to focus on with starting your business.
Normally, a TABC applicant must first get a denial from the city or county based on the municipality's local distance ordinance before the applicant can submit a variance request. Then, the applicant must apply for the variance with the city and may possibly need to pay a variance application fee. Some cities have a specific form for requesting an alcohol distance variance, but many do not. Then the applicant must give a presentation to city council and argue why the variance should be granted so the TABC permit for the business can be issued. Navigating the variance process quickly and efficiently is extremely important in getting your business open and operating. Our team of experts have over 70 years experience in the Texas alcoholic beverage industry and we have successfully handled approved variance requests from beginning end for our clients throughout the Texas.
You may find other services that will assist you with your TABC application or variance request, but as a law firm, we have an ethical responsibility to ensure your TABC application is correct and meets the requirements of the laws in Texas. Another benefit to hiring a law firm to handling your alcohol variance request is that your communications with the lawyer are subject to attorney-client privilege.