Alcohol Policy Solutions

LAND USE POLICIES
Land use regulations are a public health advocacy tool that has been successfully used to lessen the negative impacts of alcohol retail outlets in neighborhoods.

Conditional Use Permit (CUP)

A conditional use permit is a special zoning permit that allows a local jurisdiction to place conditions on the location, design and operation of any type of commercial activity. CUP ordinances have become excellent tools for local regulation of retail alcohol outlets to protect the health, safety and well-being of the community. In order to operate a retail alcohol establishment in a particular location, a business owner must have a zoning permit from the local municipality, before the state Department of Alcoholic Beverage Control (ABC) will issue a license for that location. A CUP is a method for localities to authorize sanctions against operators who do not comply with required conditions. In many cases, local jurisdictions can act much more swiftly to enforce penalties for conditional violations than is possible for the ABC. A CUP is also a mechanism for individuals and groups to have a voice in the decision-making process that shapes the retail alcohol environment in their community.

“Deemed Approved” Ordinances

Whereas CUP ordinances only apply to new alcohol licensed premises in a given community, those licenses already in existence at the time the CUP ordinance was passed are considered “grandfathered” uses and are not required to comply with CUP operating standards. A “deemed approved” ordinance is a type of local law requiring that preexisting, grandfathered alcohol outlets now comply with a set of minimum operating standards. These alcohol outlets that obtained their zoning permit prior to the passage of a CUP ordinance must then adhere to written standards of conduct the same as those with CUPs.

Guidelines for Finding “Public Convenience or Necessity”

In California, according to Section 23958.4 of the Business and Professions Code, the Alcoholic Beverage Control is required to deny a license application if the issuance of the license would create a law enforcement problem, or would result in or add to an undue concentration of licenses in a given area. The local governing body of the area in which the applicant premises is located may make a finding that “public convenience or necessity” (“pc or “n”) would be served by the issuance of the license, regardless of whether it is located in an area of undue concentration, and the ABC may then issue the license. It is to the benefit of the local jurisdiction and its residents to have strong guidelines in place which discourage the ability to make the finding for “pc or n.”

Definition of Full Service Restaurant

In many cities, it is easier and less costly to receive a permit for a full-service restaurant than for a bar or off-sale alcohol establishment. Restaurants also receive less oversight. There are some applicants looking to bypass a rigorous CUP process who propose to city planners that they are going to open a full-service restaurant but when the business becomes operational they in fact serve little or no real food. The lack of food service may become a problem, particularly for on-sale businesses, because they are simply bars with little oversight or standards of operation. It is recommended that local jurisdictions create strict criteria for the definition of a full-service restaurant and include it in their municipal code. This makes it easier to enforce penalties on violations involved to those bars masquerading as restaurants.

Cabaret Permits

In most jurisdictions, an establishment licensed to sell alcohol that offers or provides entertainment or dancing for its guests is required to obtain a cabaret permit. The local jurisdictions may authorize a specific department or individual to issue such permits. There are usually two types of cabaret permits: a stand-alone cabaret with alcohol sales, and a cabaret attached to a restaurant or bar with the entertainment as a secondary activity.

There is a crucial link between cabaret activity and full service restaurant conditions. If the restaurant is the primary activity, and “full service restaurant” conditions are enforced (no less than 60 percent of total revenue generated from food service and no more than 40 percent of revenue from alcohol), then the cabaret activity is not as likely to be problematic. When the “full service restaurant” conditions are not enforced, the restaurant license itself may be a ruse, and the cabaret permit is used to increase alcohol sales.

Entertainment Zones

Cities often desire designated “Entertainment Zones” as a focal point for entertainment and tourism where the alcohol outlet density is allowed to be greater than in lower density mixed residential/commercial zones. This creates an alcohol-rich environment where patrons may circulate from one venue to another, consuming large quantities of alcohol at night over a long period of time. When the entertainment venues close, large numbers of intoxicated patrons may hit the street at the same time, causing public nuisance problems for law enforcement officers and other community members.

Community residents can push for several requirements in order to protect their own neighborhoods. These could include limiting the number of alcohol licenses permitted in an entertainment zone, and prohibiting licenses to be transferred from the entertainment zone to other parts of the city.

Nuisance Abatement

Local zoning departments have the authority to abate public nuisances around alcohol outlets. Examples of such nuisance problems include noise, loitering, littering, disturbing the peace, public drunkenness, public urination, lewd conduct, and harassment of passersby. The use permit of the problem establishment can be subject to conditions, modifications, or revocation, after due process, if there is not compliance.

LOCAL HEALTH CODES

Most alcohol establishments, both on-sale and off-sale, sell some kind of food products and are thus required to comply with local health codes. It is helpful to engage health department inspectors when addressing problem alcohol businesses. Rarely does a problem business have only one type of problem. Therefore it makes sense to take all steps necessary to get the owner’s attention, including health inspection, which can result in immediate temporary closure of the business.

The types of health code violations may be related to cleanliness, food handling, food products beyond their shelf life or acceptable sale date, or the need for pest control to prevent the spread of disease.