HomeMy WebLinkAbout11/15/1988, 2 - REGULATION OF CONCURRENT SALES OF GASOLINE AND BEER AND WINE (CR 1402). MEETING DATE:
��� ��►►�Illll��p►A city of San LUIS ogIspo 11-15-88
COUNCIL AGENDA REPORT ITEM
FROM Terry Sanville, Acting Community Development Dir. BY: Glen Matteson, Assoc. Plnr.
SUBJECT: Regulation of concurrent sales of gasoline and beer and wine (CR 1402).
CAO RECOMMENDATION
Introduce in summary form the attached ordinance to (1) affirm the prohibition of
concurrent sales and (2) adopt regulations for concurrent sales, to take effect if the
prohibition is invalidated.
INTRODUCTION
A 1982 city law prohibits selling alcoholic beverages from service stations, defined as
any retail business selling motor fuel. The state legislature voided the prohibition
effective January 1, 1989. Since the mid-1970's, the city's Zoning Regulations have
required use-permit approval for the combination of service station and retail sales of
groceries or liquor.
Staff and the Planning Commission have recommended strengthening the Zoning Regulations
to minimize the health and safety problems resulting from concurrent sales, while
conforming with the recent change in state law. The council considered this issue
November 1, and continued action with direction to affirm the city's position that
concurrent sales are not appropriate.
SIGNIFICANT IMPACTS
Staff foresees no significant impacts on the community from affirming the prohibition,
but substantial legal costs may be incurred in defending this position (see City
Attorney's memorandum, attached).
CONSEQUENCES OF NOT TAKING ACTION
If the council does not act at this meeting, there may be a time after January 1 when
concurrent sales could be established without city control.
BACKGROUND
Situation Evaluation
A city law adopted in 1982 prohibits selling alcoholic beverages from service stations,
defined as any retail business selling motor fuel (Municipal Code Section 5.36.020,
attached, which is not part of the Zoning Regulations). Several cities adopted such laws
because they were concerned that the concurrent sales of fuel and alcohol from the
increasingly popular minimarts at gas stations, and at convenience stores with fuel
pumps, would encourage drunk driving. Locally, the police chief was concerned with
concurrent sales outlets becoming prime "stop-and-rob" targets, because of the large
amount of cash frequently generated by beer and wine sales.
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COUNCIL AGENDA REPORT
Concurrent sales
Page 2
Since the mid-1970's, the city's Zoning Regulations have required use-permit approval for
the combination of service station and retail sales of groceries or liquor (Section
17.22.010, attached). They do this not by explicitly saying so, but by requiring a use
permit for one or the other of the uses in each zone where they are allowed, and by
requiring a use permit when adding to or changing a use which needs a use permit to be
established, or adding an allowed use to a site with a use which needs a use permit
(Section 17.58.070). Use permits were required for this combination of activities
because the city was concerned about conflicts between people walking and driving cars on
the site, supervision of self-service fuel sales, and possible harmful effects on
neighbors. (Visibility and emergency shut-off of the pumps from a control booth and some
other basic safety features are separate code requirements.)
Last year, the state legislature prevented future local prohibitions and voided existing
ones after January 1, 1989 (Section 23709.5 of the California Business and Professions
Code, enacted as AB 937, attached). (Note: The new state law applies only to beer and
wine; concurrent sales of "hard liquor" can still be prohibited, and this prohibition is
recommended in the draft ordinance.) The new state law was supposedly a compromise
between oil companies and retailers anxious to expand their concurrent sales activities
and local government and citizen groups.
According to the statute, then, the city's prohibition of concurrent sales will be
invalid after the first of the year. The state law does allow city use-permit
regulation of "the concurrent retailing of motor vehicle fuel with beer and wine for
off-premises consumption, based on appropriate health, safety, and general welfare
standards contained in the" regulations, if the city's regulations also:
1. Require the decision-making body to make written findings;
2. Provide for appeal if the ability to act on use permits has been delegated;
3. Contain procedures for notice, hearing, and public testimony;
4. Require "that the findings be based on substantial evidence in view of the whole
record to justify the ultimate decision."
The city's Zoning Regulations have the first three items but not the fourth, which until
now has been a judicial standard applied to some actions that have been challenged,
rather than a required element of local zoning regulations.
Apparently, the advocates of concurrent sales hoped there would be no substantial
evidence that selling fuel and beer/wine at the same site was more likely to cause
problems than selling them at separate but nearby sites, and this lack of evidence either
would persuade cities to approve requests or it would be used by applicants to challenge
denials.
City staff has previously distributed a summary of expert testimony at the state
legislature and a San Diego County survey which conclude that:
Greater availability of alcoholic beverages leads to more drinking;
More drinking causes more public health and safety problems;
Concurrent-sale outlets make beer/wine more available, for drivers and under-age
consumers;
Concurrent-sales outlets are responsible for a higher proportion of in-car drinking
among those in alcohol-offender programs.
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COUNCIL AGENDA REPORT
Concurrent sales
Page 3
The state law does include standards concerning display and advertising of beer and wine,
but they automatically expire January 1, 1990. The fact that these standards have been
incorporated into the law seems a tacit admission that drivers should not be encouraged
to buy beer and wine, or at least not to buy individual containers ready for drinking "on
the way out" It makes sense to keep these standards after January 1, 1990. Also,
additional requirements may be justified, such as:
1. No alcoholic beverage sales for on-site consumption (just to be sure, though this is
covered by state rules and bars would need use-permit approval);
2. Any service station selling beer and wine could do so only in conjunction with
selling groceries and other sundries and convenience items, to avoid having liquor
stores with gas pumps;
3. No concurrent-sales outlet within a certain distance (1,000 feet) of another
concurrent-sales outlet;
4. No concurrent-sales outlet within a certain distance (1,000 feet of any other
business selling alcoholic beverages for off-site (or on-site) consumption);
5. No concurrent-sales outlet within a certain distance (1,000 feet) of certain uses
(any elementary or secondary school, public park);
6. Fewer hours than provided in state law for concurrent sales to occur (for example,
not after 9:00 p.m., rather than 2:00 a.m.), to reduce the likelihood of evening or
late-night purchases being consumed on the road;
7. No advertisement or display of alcoholic beverages visible from off the premises;
B. Inside the premises, space for "public service" posters noting the effects of drunk
driving, equal to at least the area devoted to advertising beer and wine.
9. Prohibit sale of refrigerated items, reducing the likelihood of immediate
consumption.
OTHER DEPARTMENT COMMENTS
Citv Attorney
The state legislature has indicated its intent that regulation of concurrent sales is a
state matter, and has prescribed limits to local regulation as it has other aspects of
alcoholic beverages sales. The city can and probably will need to defend from legeal
challenges city regulations which are more strict than the state's. A more complete
discussion of the legal issues is available in the enclosed memorandum from the City
Attorney.
I
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111110 COUNCIL AGENDA REPORT
Concurrent sales
Page 4
Police
Concerning the possible requirements (listed on the previous page), the Police Department
believes items 6 and 7 are good ideas. A limit on hours of operation would prevent a gas
station from staying open late just to sell beer and wine. In their view, items 2 and 8
are probably not useful.
ALTERNATIVES
The council may:
Affirm the prohibition on concurrent sales and adopt regulations which would take
effect if the prohibition is ruled invalid;
Repeal the prohibition and adopt regulations;
Decide to not prohibit or regulate concurrent sales.
Continue action. However, the council would have to approve any new regulations as
an urgency ordinance to have them take effect before January 1.
If the council chooses to regulate, it may adopt the zoning amendments as recommended by
the Planning Commission, or any changes to review requirements or standards which are
deemed appropriate. i
CITIZEN PARTICIPATION
On October 12, 1988, the Planning Commission voted six to none (one absent) to recommend
the amendments contained in the attached draft ordinance. Commissioners favored the most
restrictive possible regulations. One citizen spoke, favoring the prohibition of
concurrent sales.
RECOMMENDATION
Introduce in summary form the attached ordinance to:
A. Affirm the existing prohibition of concurrent sales, with recommended findings.
B. Approve a negative declaration of environmental impact for the new regulations.
C. Amend the Zoning Regulations, effective upon invalidation of the prohibition, to
require:
1. No sales of alcoholic beverages other than beer and wine;
2. No beer or wine sales for on-site consumption;
1111qiIIIJJJJiJJJ�� city of san tuts osispo
COUNCIL AGENDA REPORT
Concurrent sales
Page 5
3. Any service station selling beer and wine could do so only in conjunction with
selling groceries and other sundries and convenience items;
4. No concurrent-sales outlet within 1,000 feet of any other alcohol-serving or
selling establishment;
5. Sales of beer or wine between 10:00 a.m. and 4:00 p.m. only;
6. No advertisement or display of beer or wine visible from off the premises;
7. Inside the premises, space for "public service" posters noting the effects of
drunk driving, equal to at least the area devoted to advertising beer and wine;
8. No beer or wine shall be displayed within ten feet of the cash register,
9. No advertisement of beer or wine shall be displayed at motor fuel islands and no
self-illuminated advertising for beer or wine shall be located on buildings or
windows;
10. No sales of beer or wine shall be made from a drive-in window;
11. No sale or display of refrigerated beer or wine.
Attached:
Draft ordinance
Enclosed: Memorandum from City Attorney (forthcoming)
Distributed previously:
Draft Planning Commission minutes, 10-12-88
State Assembly Committee testimony, Wittman, 4/86
San Diego County study, 3/86
Municipal Code excerpt - alcoholic beverage sales at gas stations
Zoning Regulations excerpt - use chart
AB 937 - state law
Initial environmental study
gm2/cr 1402
I
ORDINANCE NO. (1988 Series)
AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO CONCERNING
CONCURRENT SALES OF ALCOHOLIC BEVERAGES AND MOTOR FUEL (CR 1402)
BE IT ORDAINED by the Council of the City of San Luis Obispo as follows:
SECTION 1. Findings
A. The Planning Commission and the City Council have held hearings to consider
appropriate regulations in accordance with the California Government Code.
B. The prohibition of concurent sales of motor fuel and alcoholic beverages is a
muncipal affair, addressing locally defined issues of land use and public health and
safety.
C. Within the city there exist many retail outlets of various types, other than service
stations, where alcoholic beverages are readily available.
D. There is substantial evidence that greater availability of alcoholic beverages leads
to greater consumption, and that greater consumption causes more problems of absense
from work or school, occupational injuries and reduced product quality, domestic
violence, alcohol-related diseases, inappropriate public behavior, under-age
drinking, and household, recreational, and vehicle accidents.
E. Concurrent sales have been shown to contribute proportionately more to incidents of
alcohol-induced health and traffic problems than other means of alcoholic-beverage
retailing.
F. The regulations for concurrent sales which may take effect upon invalidation of the
prohibition have been evaluated in accordance with the California Environmental
Quality Act and the city's Environmental Impact Guidelines, and a negative
declaration has been granted by the city.
G. The proposed zoning provisions, absent a prohibition, are necessary to promote the
public health, safety, and general welfare.
SECTION 2. Environmental determination
After review and consideration, the determination of the Community Development
Director to approve a negative declaration is hereby affirmed.
SECTION 3. Prohibition Q[ concurrent sales
Municipal Code Section 5.36.020, prohibiting the concurrent sales of motor fuel and
alcoholic beverages, is hereby affirmed, and shall remain in full effect unless and until
it is held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction.
Ordinance No. (1988 Series)
Page 2 .
SECTION 4. Zoning Regulations amendment
The Zoning Regulations (Municipal Code Chapters 17.08, 17.22, and 17.58) are hereby
amended to provide standards and use-permit review for concurrent sales outlets, as fully
contained in the attached Exhibit A. This amendment shall take effect immediately upon
the decision of any court of competent jurisdiction which holds Municipal Section
5.36.020 to be invalid or unconstitutional.
SECTION 5. Publication
A summary of this ordinance, approved by the city attorney, shall be published once, at
least three (3) days before its final passage, in the Telegram-Tribune, a newspaper
published and circulated in this city. This ordinance shall go into effect at the
expiration of thirty (30) days after its final passage.
INTRODUCED by the Council of the City of San Luis Obispo, at its meeting held on
the ....... day of ...................... 1988, on motion of ............................
seconded by ................................. and on the following roll call vote:
AYES:
NOES:
ABSENT:
............................................
Mayor
ATTEST:
City Clerk
Ordinance No. (1988 Series)
Page 3
APPROVED:
City A inistrative Officer
N
ty ttor
w
Community Dent Director
gm2/1402ord
j
Ordinance No. (1988 Series)
EXHIBIT A
Aid.Ih!< following section
17.08.100. Concurrent sales of motor fuel and alcoholic beverages.
Concurrent sales of alcoholic beverages other than beer and wine are prohibited. The
concurrent sales of motor fuel and beer or wine at a single premises or retail outlet
shall be subject to the following:
A. There shall be no sales of beer or wine for on-site consumption;
B. Beer and wine may be sold only in conjunction with selling groceries and other
sundries and convenience items;
C. No concurrent-sales outlet shall be established within 1,000 feet of any other
alcohol-serving or selling establishment;
D. Sales of beer or wine between 4:00 p.m. and 10:00 a.m. are prohibited;
E. There shall be no advertisement or display of beer or wine visible from off the
premises;
F. Inside the premises, there shall be provided space for public-service posters
concerning the effects of drunk driving, equal to at least the area devoted to
advertising beer and wine;
G. No beer or wine shall be displayed within ten feet of the cash register;
H. No advertisement of beer or wine shall be displayed at motor fuel islands and no
self-illuminated advertising for beer or wine shall be located on buildings or
windows;
I. No sales of beer or wine shall be made from a drive-in window;
J. There shall be no sales or display of refrigerated beer or wine.
JJM following h 1 bg 1d&A IQ Section 17,22,414(Table 2�
Uses Allowed by Zone R-1 R-2 I R-3 I R-41 COS.1 O n PF I C-N I C-C C-R C-TC-S M
t:cnccrrent sales of alcoholic I I I I I D I D D t7 I
beverages and motor fuel (see I I
also Section 17.08.100)
A — Allowed PC — Planning commission approval required
D — Director's approval required A/D — Direeta's approval on ground floor,allowed above
The director shall determine da propoaerl unlisted ase is similar go a listed use.Numbed notes are stead of than.
T4 following shall hl added IQ Section 17.58,040
Actions on use permits shall be justified by written findings, based on substantial
evidence in view of the whole record.