Undue Concentration & Alcohol License Restrictions
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1 Undue Concentration & Alcohol License Restrictions Useful Links:
2 Definitions On-sale: Establishments that sell alcohol for on-site consumption. i.e. restaurants, bars Off-sale: Establishments that sell alcohol for off-site consumption. i.e. liquor stores, grocery stores Beer and wine licenses: ABC licenses that allow the sale of beer and wine, not distilled spirits. General licenses: ABC licenses that permit the sale of distilled spirits in addition to beer and wine.
3 Population There are two important limits to consider in the licensing process. 1. County limit: Limits on the number of licenses available in each county based on the entire county population. 2. Census tract limits: Limits on the number of outlets authorized in one area using the census tract population in comparison to the county population.
4 Off-Sale Licenses
5 State Limits on General Licenses Reference: California Business and Professions Code It is hereby determined that the public welfare and morals require that there be a limitation on the number of premises licensed for the sale of distilled spirits. Off-Sale: County Limit
6 Limits for Off-Sale General 2,500 county residents = 1 license (Business and Professions Code 23817) Off-Sale: County Limit
7 Limits for Off-Sale General In San Diego County, that means: 3,118,876 residents / 2500 = 1,248 off-sale general outlets authorized We have 1,036 Off-Sale: County Limit
8 Limits for Off-sale Beer and Wine California Business and Professions Code The Legislature finds and declares that the public welfare and morals require that there be a limitation on the number of premises licensed for the off sale of beer and wine. Off-Sale: County Limit
9 Limits for Off-sale Beer and Wine 2,500county orcity residents = 1 license Business and Professions Code (a) (1) Off-Sale: County Limit
10 Limits for Off-sale Beer and Wine In San Diego County that means: 3,118,876 county residents/2500 = 1,248 off-sale beer and wine outlets authorized We have 970 (Population Calif. Dept. of Finance. Total retail outlets from ABC s June 30, 2011 Count of Retail Licenses.) Off-Sale: County Limit
11 Limits for Off-Sale Beer and Wine The ABC can issue additional off-sale beer and wine licenses if the location is: 1. Not high crime AND 2. Not high density AND 3. The local governing body determines public convenience or necessity Off-Sale: County Limit (Business and Professions Code )
12 Off-sale Beer and Wine Off-sale general + Off-sale beer and wine = 1 outlet per 1,200 county residents (Business and Professions Code (a) (2) ) Off-Sale: County Limit
13 Limits for Off-sale In San Diego County that means: 3,118,876 residents / 1 per 1,200 = 2,600 off-sale authorized 1,036 off-sale general Off-sale beer and wine = 2,006 actual Off-Sale: County Limit
14 What else is considered? ABC Considers: Applicant Location Public welfare and morals An application must be denied if the issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except as provided in Section (Business and Professions Code 23958)
15 Off-Sale: Census Tract Limit
16 Undue Concentration Undue concentration applies to original and premises-to-premises transfers when any of the following exists: 1. High Crime: At least 20 percent higher than average a) Premises located in crime reporting district with 20 percent greater number of reported crimes compared to entire law enforcement jurisdiction. 2. Too many outlets: More than the county average. a) As to on-sale, the ratio of on-sale retail licenses to population in the census tract exceeds the ratio of on-sale retail licenses to county population. b) As to off-sale, the ratio of off-sale retail licenses to population in the census tract or census division exceeds the ratio of off-sale retail licenses to county population. Off-Sale: Census Tract Limit (Business and Professions Code (a) (1)-(3))
17 Off-Sale Undue Concentration County off-sale retail outlet average: 3,118,876 county residents 2,006 total off-sale retail outlets = 1 off-sale outlet per 1,555 residents (Population Calif. Dept. of Finance. Total retail outlets from ABC s June 30, 2011 Count of Retail Licenses.) Off-Sale: Census Tract Limit
18 Example Population: 3,098 Census Tract 11: County average for off-sale: 1 outlet / 1,555 residents Tract 11 Undue concentration trigger: Population / County average = 3,098 / 1,555 = 2 off-sale authorized Actual number of off-sale outlets = 4 2 < 4 = Unduly concentrated Off-Sale: Census Tract Limit
19 Public Convenience or Necessity (PCorN) ABC still can issue a license if PC or N is determined. Who determines PC or N? ABC determines: Local governing body determines: Non-retail Retail on-sale bona fide eating place Hotel, motel, other lodging In conjunction with beer manufacturer Wine grower All others within 90 days OR Decision goes back to ABC (Business and Professions Code (b)(2)) (Business and Professions Code (b)(1)) Off-Sale: Census Tract Limit
20 Examples An applicant intends to sell beer and wine at Small Town Market in unincorporated San Diego County. The county has not yet reached its limit of one offsale beer and wine license for each 2,500 residents. Small Town Market is located in a census tract with 5,000 residents and 1 off-sale license. Undue Concentration exists. Public Convenience or Necessity must be determined by the local governing body. Small Town Market has a crime rate 50 percent higher than the average. 5,000 residents / 1555 county ratio for undue concentration = 4 allowed 1 < 4 Off-Sale: Census Tract Limit
21 Examples What if Small Town Market was in a census tract with a crime rate 50 percent lower than the average? No undue concentration No PC or N determination necessary Off-Sale: Census Tract Limit
22 On-Sale Licenses
23 On-Sale: County Limit
24 Limits on General Licenses Reference: California Business and Professions Code It is hereby determined that the public welfare and morals require that there be a limitation on the number of premises licensed for the sale of distilled spirits. On-Sale: County Limit
25 On-Sale General 2,000 county residents = 1 license (Business and Professions Code 23816) On-Sale: County Limit
26 On-Sale General In San Diego County that means: 3,118,876 county residents / 1 outlet per 2,000 = 1,560 on-sale general licenses On-Sale: County Limit
27 Limits on Beer and Wine Licenses No specific county population-based limit for on-sale beer and wine. Undue concentration limits do apply to original or premises-to-premises transfers. (Business and Professions Code ) On-Sale: County Limit
28 On-Sale: Census Tract Limit
29 Undue Concentration Undue concentration applies to original and premises-to-premises transfers when any of the following exists: 1. High Crime: At least 20 percent higher than average a) Premises located in crime reporting district with 20 percent greater number of reported crimes compared to entire law enforcement jurisdiction. 2. Too many outlets: More than the county average. a) As to on-sale, the ratio of on-sale retail licenses to population in the census tract exceeds the ratio of on-sale retail licenses to county population. b) As to off-sale, the ratio of off-sale retail licenses to population in the census tract or census division exceeds the ratio of off-sale retail licenses to county population. Off-Sale: Census Tract Limit (Business and Professions Code (a) (1)-(3))
30 On-Sale Undue Concentration (cont.) County on-sale retail outlet average: 1,616 On-sale General + 2,606 On-sale Beer and Wine = 4,222 total on-sale outlets 3,118,876 county residents 4,222 total on-sale outlets = 1 on-sale outlet per 739 residents (Population from 2010 US Census. Total retail outlets from ABC s June 30, 2011 Count of Retail Licenses.) On-Sale: Census Tract Limit
31 Example Population: 3,098 Census Tract 11: County average for on-sale: 1 outlet / 739 residents Tract 11 Undue concentration trigger: Population / County average = 3,098 / 739 = 5 on-sale authorized Actual number of on-sale outlets = 9 5 < 9 = Unduly concentrated On-Sale: Census Tract Limit
32 Public Convenience or Necessity (PCorN) ABC still can issue a license in an unduly concentrated area if PC or N is served. Who determines PC or N? ABC determines: Local governing body determines: Non-retail Retail on-sale bona fide eating place Hotel, motel, other lodging In conjunction with beer manufacturer Wine grower All others within 90 days OR Decision goes back to ABC (Business and Professions Code (b)(2)) (Business and Professions Code (b)(1)) On-Sale: Census Tract Limit
33 Examples Applicant intends to sell beer, wine and distilled spirits in Bob s Fish House on University Ave. Applicant intends to purchase a Type 47 license from a restaurant closing in Pacific Beach. Bob s is located in census tract 8. There are 4,280 residents and 4 on-sale establishments. Undue concentration does not apply. Public convenience or necessity does not need to be determined. Crimein Census tract 8 is not more than 20 percent higher than the San Diego average. Undue concentration: 4,280 residents / 739 county ratio = 6 allowed 6 > 4 On-Sale: Census Tract Limit
34 Examples What if Census tract 8 had more than 20 percent greater crime than the average for San Diego? There is undue concentration because it is high crime. The applicant would need to prove public convenience or necessity to ABC. On-Sale: Census Tract Limit
35 Undue Concentration Undue concentration applies to original and premises-to-premises transfers when any of the following exists: 1. High Crime: At least 20 percent higher than average a) Premises located in crime reporting district with 20 percent greater number of reported crimes compared to entire law enforcement jurisdiction. 2. Too many outlets: More than the county average. a) As to on-sale, the ratio of on-sale retail licenses to population in the census tract exceeds the ratio of on-sale retail licenses to county population. b) As to off-sale, the ratio of off-sale retail licenses to population in the census tract or census division exceeds the ratio of off-sale retail licenses to county population. Off-Sale: Census Tract Limit (Business and Professions Code (a) (1)-(3))
36 Public Convenience or Necessity (PCorN) ABC still can issue a license in an unduly concentrated area if PC or N is served. Who determines PC or N? ABC determines: Local governing body determines: Non-retail Retail on-sale bona fide eating place Hotel, motel, other lodging In conjunction with beer manufacturer Wine grower All others within 90 days OR Decision goes back to ABC (Business and Professions Code (b)(2)) (Business and Professions Code (b)(1)) On-Sale: Census Tract Limit
37 Examples What if Census tract 8 had an undue concentration of off-sale licenses? Off-sale licenses have no bearing on an on-sale application. On-Sale: Census Tract Limit
38 Undue Concentration Undue concentration applies to original and premises-to-premises transfers when any of the following exists: 1. High Crime: At least 20 percent higher than average a) Premises located in crime reporting district with 20 percent greater number of reported crimes compared to entire law enforcement jurisdiction. 2. Too many outlets: More than the county average. a) As to on-sale, the ratio of on-sale retail licenses to population in the census tract exceeds the ratio of on-sale retail licenses to county population. b) As to off-sale, the ratio of off-sale retail licenses to population in the census tract or census division exceeds the ratio of off-sale retail licenses to county population. Off-Sale: Census Tract Limit (Business and Professions Code (a) (1)-(3))
39 What if Bob wanted a Type 50 license to open a club instead of a restaurant and there is an undue concentration of on-sale outlets? The local governing body would need to determine public convenience or necessity. On-Sale: Census Tract Limit
40 Public Convenience or Necessity (PCorN) ABC still can issue a license in an unduly concentrated area if PC or N is served. Who determines PC or N? ABC determines: Local governing body determines: Non-retail Retail on-sale bona fide eating place Hotel, motel, other lodging In conjunction with beer manufacturer Wine grower All others within 90 days OR Decision goes back to ABC (Business and Professions Code (b)(2)) (Business and Professions Code (b)(1)) On-Sale: Census Tract Limit
41 Density vs. Undue Concentration
42 Density vs. Undue Concentration Undue Concentration: The legal term used by the ABC that considers the number of outlets compared to residents and crime in a census tract. High Density: Off-sale outlets: 1 per 1,555 residents On-sale outlets: 1 per 739 residents Crime: More than 20 percent higher than the average This is not a legal term used by the ABC. For prevention purposes, we could use it to describe the number of outlets in a census tract without considering crime. Off-sale outlets: 1 per 1,555 residents On-sale outlets: 1 per 739 residents High density always indicates undue concentration. Undue concentration does not always indicate high density.
43 High Density vs. Undue Concentration All census tracts in San Diego County Undue Concentration High Crime High Density
44 Density and Undue Concentration in the County Census Tract Census Tract Population (2010) Off-sale General Actual Off-sale Beer and Wine Actual Total Off-sale Actual Total Off-sale Authorized Population (2010) Off-sale General Actual Off-sale Beer and Wine Actual Total Offsale Actual Total Offsale Authorized
45 Example Census Tract 8 Population: 4280 Tract 8 Off-sale general: 3 Off-sale beer and wine: 0 Off-sale total: 3 Off-sale undue concentration (4,280 / 1,555): 3 No high density Might have undue concentration
46 Density and Undue Concentration in the County Off-sale Off-sale Beer Off-sale Off-sale Beer Population Population General General and and Wine Wine Total Total Off-sale Total Off-sale Off-sale Total Off-sale Census Tract (2010) Actual Actual Actual Authorized Census Tract (2010) Actual Actual Actual Authorized Off-sale Off-sale 2 Beer 0 and Population 3108 General 2 Wine 3 Total 5 Offsale Actual (2010) Actual Actual Census Tract Total Offsale Authorized
47 Example Census Tract 9: Tract 9 Population: 5178 Actual: Off-sale general: 2 Actual: Off-sale beer and wine: 3 Actual: Off-sale total: 5 Authorized: Off-sale undue concentration (5,178 / 1,555): 4 High density Undue concentration
48 Undue Concentration in San Diego County Census Tract Census Tract Population (2010) On-sale General Actual On-sale Beer and Wine Actual Total On-sale Actual TotalOn-sale Authorized Population (2010) On-sale General Actual On-sale Beer and Wine Actual Total Onsale Actual Total Onsale Authorized
49 Example Tract 10 Census Tract 10: Population: 4733 On-sale general: 3 On-sale beer and wine: 11 On-sale total: 14 On-sale undue concentration (4,733 / 739): 7 High Density Undue Concentration
50 Questions & Discussion
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Last Updated 2013 This booklet has been prepared by the Clayton Downtown Development Association Welcome The Town of Clayton welcomes and desires to work with new and existing business to make the permitting
Denver City Council. David W. Broadwell, Assistant City Attorney
Department of Law D. Scott Martinez, City Attorney 1437 Bannock St, Room 353 Denver, CO 80202-5375 p: 720.865-8600 f: 720.865-8796 www.denvergov.org/cityattorney TO: FROM: RE: Denver City Council David