§ 52-49. Sale, serving or storage of alcoholic beverages.
(a)
Notwithstanding any other provision of this ordinance, the storage, possession, sale, serving, or consumption of any alcoholic beverages, when permitted by the laws of the State of Texas, shall be regulated and governed by the following use regulations and requirements:
(1)
For the purpose of this ordinance the following words and phrases shall have the meanings ascribed to them as follows:
a.
Alcoholic beverage means 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.
b.
Restaurant with attendant accessory use of the sale of alcoholic beverages for on-premises consumption. The zoning designation for this use shall be S-P-1 (R-AB). The terms "restaurant with attendant accessory use of the sale of alcoholic beverages for on-premises consumption" and zoning designation "S-P-1 (R-AB)" shall mean a restaurant or eating establishment zoned S-P-1 (R-AB) whose gross sales in Irving from food on an annual basis represents at least fifty (50) percent of its total sales of food and alcoholic beverages. This defined restaurant use shall be an authorized and permitted use as a principal use or as an accessory use, upon approval of S-P-1 (R-AB) zoning designation for all properties zoned under this section. Drive-in restaurants are specifically excluded from the definitions of a restaurant with attendant accessory use of the sale of alcoholic beverages.
c.
Commence construction shall mean the setting of building foundation piers and beams.
d.
Drive-in restaurant shall mean a public eating place which has facilities for serving food and beverages to customers in their motor vehicles on the premises.
e.
Food shall mean nutriment for human consumption in solid form and beverages which have no alcohol content but the meaning of food shall not include any beverages having any alcoholic content, alcoholic beverage mixes, or other ingredients used for the preparation of alcoholic beverages.
f.
Mixed beverage means one or more servings of a beverage composed in whole or part of an alcoholic beverage in a sealed or unsealed container of any legal size for consumption on the premises where served or sold by the holder of a mixed beverage permit.
g.
The term person shall include association, trustee, receiver, organization, corporations, firms, partnerships, and natural persons.
h.
For this section 52-49 of Ordinance No. 1144, hotel means the premises of an establishment:
1.
Where in consideration of payment, travelers are furnished food and lodging; and
2.
In which are located at least ten (10) adequately furnished, completely separate rooms with adequate facilities so comfortably disposed that persons usually apply for and receive overnight accommodations in the establishment, either in the course of usual and regular travel or as a residence; and
3.
Which operates a regular dining room constantly frequented by customers each day.
i.
Residential purposes shall mean land actually being used to provide single- or multi-family homes for natural persons.
j.
Private school means a private school, including a parochial school, that:
1.
Offers a course of instruction for students in one (1) or more grades from kindergarten through grade 12; and
2.
Has more than one hundred (100) students enrolled and attending courses at a single location.
k.
Eating establishment shall include, but not be limited to, a restaurant, cafeteria, convention center, hotel, entertainment center or a Public Entertainment Facility as defined in Section 108.73, Texas Alcoholic Beverage Code, wherein alcoholic beverages are sold by a single mixed beverage permit holder and the total sales of alcoholic beverages on the premises holding the S-P-1 (R-AB) designation do not exceed 50 percent of the total sales of food and mixed beverages on the permitted premises.
l.
Special regulation area shall mean land located in the urban business overlay district.
m.
Mixed beverage permit means a mixed beverage permit as defined by Chapter 28 of the Texas Alcoholic Beverage Code and includes derivative permits, such as a wine and beer retailer's permit, that allow on-premise sale of alcoholic beverages based on provisions of the Texas Alcoholic Beverage Code relative to areas in which voters approved the legal sale of beer and wine for off-premise consumption only and the legal sale of mixed beverages.
(2)
a.
The storage, possession, sale, serving, or consumption of any alcoholic beverages to be sold or served by the holder of a mixed beverage permit or the holder of a private club permit issued by the State of Texas, in bottles or any other container direct to the customer or person for consumption on the premises of the holder of a mixed beverage permit or in a private club, shall be permitted only in a restaurant as defined in (1)b. above in a S-P-1 site plan district under section 52-32a of this ordinance after the applicant has made a written request for a change in zoning under said section 52-32a of this ordinance to permit such use but the city council shall not zone any drive-in restaurant for the storage, possession, sale, serving, or consuming of any alcoholic beverage.
b.
The site plan to be submitted pursuant to said section 52-32a shall satisfy all of the requirements of section 52-32a and the following additional requirements:
1.
Interior design plan including general location of all waiting areas, restaurant seating areas reflecting the approximate number of seats, kitchen, storage, serving, and other activity areas within the restaurant.
2.
The specifically delineated area to be zoned for restaurant S-P-1 (R-AB) and all areas necessary to provide adequate and necessary ingress-egress and parking. Only within the area specifically delineated (R-AB) may alcoholic beverages be sold for consumption on premises. Provided, however, the holder of a mixed beverage permit operating an accessory use within a hotel that includes the zoning designation of S-P-1 (R-AB) may deliver mixed beverages, including wine and beer, to individual rooms of the hotel pursuant to section 28.01(b) of the Alcoholic Beverage Code of the State of Texas.
3.
An artist's rendering, photographs, elevation drawings or sketches, or other illustrations for the proposed restaurant which show proposed exterior features.
4.
Narrative description of the planned activities in the restaurant which includes projected breakdown of revenues between food sales and sales of alcoholic beverages and any use of the restaurant premises for dancing, gaming devices, and/or electronic amusement games.
(3)
The person operating a restaurant with a zoning designation of S-P-1 (R-AB) shall on a semi-annual basis, no later than on the tenth day of the month following each six (6) month period, file with the city secretary an affidavit on an officially approved form provided by the city secretary that reflects gross sales for the preceding six (6) months and gross sales for the preceding twelve-month period, or since the restaurant began its operation, whichever is shorter, breaking down the sales between the sale of food and the sale of alcoholic beverages. For purposes of breaking down the sales between food and alcoholic beverages, sales taxes, alcoholic beverage taxes and any other applicable taxes or fees shall not be included in the calculations. The person operating a restaurant with a zoning designation of S-P-1 (R-AB) shall on a semi-annual basis file with the city secretary a copy of the filings supplied to the State of Texas for sales tax and mixed beverage (alcoholic beverages) tax purposes. The city reserves the right to request persons operating a restaurant with a zoning district designation of S-P-1 (R-AB) to submit an annual audit of the gross sales broken down between food sales and mixed beverages sales at the person's expense. All filings including all sales and beverage tax filings shall remain confidential. The person operating a restaurant with a zoning designation of S-P-1 (R-AB) shall permit the city treasurer to view the books, records, and receipts relative to sale of food and alcoholic beverages at any time after four (4) hours' notice. The city attorney, city manager, city council, city treasurer, mayor or city secretary may examine said records. Said records may be introduced in court for the purpose of showing the person operating a restaurant with a zoning designation of S-P-1 (R-AB) is in violation of this ordinance.
(4)
a.
All persons applying for a zoning designation of S-P-1 (R-AB) pursuant to section 52-49 of this ordinance shall sign an application that includes all material required to be submitted by this ordinance, that acknowledges receipt of a copy of section 52-49, as amended, of Ordinance No. 1144, and includes an agreement to abide by all provisions of the city's zoning ordinance and all other applicable city ordinances.
b.
Failure to submit all plans, data and information required to accompany a zoning application by section 52-49 of Ordinance No. 1144, within three (3) months of filing of the case shall result in a presumption that the case has been withdrawn and the city staff may close the file and process same no further.
(5)
A certificate of occupancy shall be issued by the city's building inspection department at such time as an applicant complies initially with section 52-49, all zoning ordinances, and all other applicable city ordinances.
(6)
A certificate of occupancy issued hereunder is valid only as to the recipient. No certificate of occupancy issued hereunder may be assigned or transferred. No person shall operate a restaurant zoned S-P-1 (R-AB) without a valid certificate of occupancy. Upon a change in ownership of the subject restaurant the new owner or person operating such a restaurant shall within ten (10) days of the change in ownership apply for a new certificate of occupancy using the same application form as required for a new zoning change, except that the application shall reflect that the property is currently zoned S-P-1 (R-AB).
(7)
The city council, after due notice and hearing, may cancel a certificate of occupancy of any party operating a restaurant zoned S-P-1 (R-AB) under section 52-49 for failure to comply with any of the terms of this ordinance and all other applicable ordinances, after receipt of written notice of noncompliance and failure to rectify any such deficiencies within thirty (30) days of receipt of such written notice. In addition to canceling the certificate of occupancy, the city attorney may inform the Texas Alcoholic Beverage Commission that the location no longer is in compliance with the City of Irving ordinances as previously certified to by the city secretary and request that the Texas Alcoholic Beverage Commission take whatever action is available under the Texas Alcoholic Beverage Code.
(8)
No S-P-1 (R-AB) site plan district for on-premises sale, serving, and consumption of alcoholic beverages either on the premises of the holder of a mixed beverage permit or on the premises of the holder of a private club permit shall be granted by the city council within three hundred (300) feet of any church, public school, or public hospital. The measurement of the distance between the place of business where alcoholic beverages are to be sold and the church or public hospital shall be along the property lines of the street fronts and from front door to front door and in a direct line across intersections. The measurement of the distance between the place of business where alcoholic beverages are to be sold and the public or private school shall be:
a.
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; or
b.
If the permit or license holder is located on or above the fifth story of a multistory building, 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.
(9)
No S-P-1 (R-AB) site plan district for on-premises sale, serving, and consumption of alcoholic beverages either on the premises of the holder of a mixed beverage permit or on the premises of the holder of a private club permit shall be granted by the city council within three hundred (300) feet of any property zoned or classified R-40, R-15, R-10, R-7.5, R-6, R-3.5, R-2.5, R-MF, R-MF-1, R-MF-2, R-MF-3, R-TH, R-MH, R-ZL, R-PH, and R-XF under Ordinance No. 1144 and any property zoned or classified A, B, C and D under Ordinance No. 209 and any property actually used for residential purposes authorized in Ordinance No. 1144 and Ordinance No. 209 irrespective of its zoning category. The measurements of the distance shall be along the property lines of the street fronts and from front door to front door and in a direct line across intersections.
(10)
The sale of alcoholic beverages within three hundred (300) feet of a church, public or private school, or public hospital is hereby prohibited. The measurement of the distance between the place of business where alcoholic beverages are sold and the church or public hospital shall be along the property lines of the street fronts and from front door to front door and in a direct line across intersections. The measurement of the distance between the place of business where alcoholic beverages are sold and the public or private school shall be:
a.
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; or
b.
If the permit or license holder is located on or above the fifth story of a multistory building, 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.
(11)
All persons applying for and receiving approval of S-P-1 (R-AB) zoning under this ordinance shall commence construction as evidenced by receipt of a building permit for the restaurant in accordance with the approved site plan within twelve (12) months of the zoning being approved. The city reserves the right and the applicant shall acknowledge the right of the city to rezone subject property in the event construction is not commenced within the stated twelve-month period.
(12)
A nonrefundable filing fee of five hundred dollars ($500.00) shall accompany each application for S-P-1 (R-AB) zoning under section 52-49.
(13)
The regulations contained in section 52-49 (a)(9) shall not apply when the proposed application for a S-P-1 (R-AB) site plan district is located on property subject to an "urban business overlay district," a "transit mall overlay district," or property zoned "transit oriented development district"; provided said proposed S-P-1 (R-AB) site plan district meets the three hundred (300) foot distance requirement from any property zoned or classified R-40, R-15, R-10, R-7.5, R-6, R-3.5, R-2.5, R-TH, R-MH, R-ZL, R-PH, or R-XF under Ordinance No. 1144. The regulations contained in subsection 52-49 (a)(9), however, shall apply when the proposed application for a S-P-1 (R-AB) site plan district is located on property within an area subject to an "urban business overlay district," a "transit mall overlay district," or property zoned "transit oriented development district"; and is also located within three hundred (300) feet of a property zoned R-MF, R-MF-1, R-MF-2, or R-MF-3 which is located on property outside of an area subject to an "urban business overlay district," a "transit mall overlay district," or property zoned "transit oriented development district."
(14)
The city council may grant a variance to the regulations contained in subsection 52-49(a)(8), subsection 52-49(a)(9), and subsection 52-49(a)(10) if it determines that enforcement of the regulation in a particular instance is not in the best interest of the public, constitutes a waste or inefficient use of land or other resources, creates an undue hardship on an applicant, does not serve its intended purpose, is not effective or necessary, or for any other reason the city council determines is in the best interest of the community after consideration of the health, safety, and welfare of the public and the equities of the situation. Applications for zoning changes under subsection 52-49(a)(14) will be processed the same as any other zoning change except that notice of the public hearing before the planning and zoning commission to consider the zoning change shall be mailed to all property owners within five hundred (500) feet of the property upon which the zoning change is being requested, according to the latest approved city tax roll.
(15)
In a restaurant with attendant accessory use of the sale of alcoholic beverages for on-premises consumption which is located in a special regulation area and zoned S-P-1 (R-AB), the gross sales in Irving from alcoholic beverages on an annual basis may be 70 percent or less of its total sales of food and alcoholic beverages.
(16)
Premises which include restaurants with attendant accessory uses of the sale of alcoholic beverages for on-premises consumption which meet all of the following:
a.
Are located in the urban business overlay district,
b.
Comprise a single, undivided tract of at least fifteen acres,
c.
Contain a public entertainment facility ("PEF"), as defined by Section 108.73, Texas Alcoholic Beverage Code, and
d.
Are zoned S-P-1 (R-AB)
shall be PEF premises. On a PEF premises, the combined gross sales in Irving from alcoholic beverages for the entire PEF premises on an annual basis may be 70 percent or less of the combined total sales of food and alcoholic beverages for the entire PEF premises. For the purposes of subsection 52-49(a)(3), an owner or operator of a PEF premises shall report a combined total of all food and alcoholic beverage sales for all of the establishments contained within the PEF premises and a breakdown for each establishment within the PEF premises, whether or not there are more than one mixed beverage or private club permit holders. The owner or operator of a proposed PEF premises applying for S-P-1 (R-AB) zoning to allow restaurants with attendant accessory uses of alcoholic beverages for on-premises consumption shall comply with all the requirements of subsection 52-49(a)(2)b, except for subsection 52-49(a)(2)b.1 and shall comply with all applicable requirements of section 52-32a.
(Ord. No. 2712, §§ 9—11, 10-31-74; Ord. No. 3768, § 2, 11-19-81; Ord. No. 6801, § 1, 5-23-96; Ord. No. 2008-9009, §§ 1—4, 10-16-08; Ord. No. 2009-9133, § 1, 10-22-09; Ord. No. 2013-9426, § 1, 1-24-13; Ord. No. 2013-9496, §§ 2, 3, 8-8-13; Ord. No. 2014-9539, § 1, 1-9-14)
State law reference
Definitions, V.T.C.A. Alcoholic Beverage Code, § 1.04.