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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. ����►i ►�Ill�p��all City of sari LUIS osispo 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. I,►�� i�hIIIIIIIpn � � city of san to s osi spo 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 ������►��IIIII���A city of Santins OBISPO 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.