32A-4-302 (Repealed 07/01/11) - Commission's power to grant licenses -- Limitations.
32A-4-302 (Repealed 07/01/11). Commission's power to grant licenses --Limitations.
(1) A restaurant wanting to sell and allow the consumption of only wine, heavy beer, andbeer on its premises, but not spirituous liquor or a flavored malt beverage, shall obtain a limitedrestaurant license from the commission as provided in this part before selling or allowing theconsumption of wine, heavy beer, or beer on its premises.
(2) (a) Subject to the other provisions of this section and Subsection 32A-4a-201(2), thecommission may grant limited restaurant licenses for the purpose of establishing limitedrestaurant outlets at places and in numbers the commission considers proper for the storage, sale,and consumption of wine, heavy beer, and beer on premises operated as public restaurants.
(b) The total number of limited restaurant licenses granted under this part may not at anytime aggregate more than that number determined by dividing the population of the state by9,300.
(c) For purposes of this Subsection (2), population shall be determined by:
(i) the most recent United States decennial or special census; or
(ii) another population determination made by the United States or state governments.
(3) (a) (i) The commission may grant seasonal limited restaurant licenses established inareas the commission considers necessary.
(ii) A seasonal limited restaurant license shall be for a period of six consecutive months.
(b) (i) A limited restaurant license granted for operation during a summer time period isknown as a "Seasonal A" limited restaurant license. The period of operation for a "Seasonal A"limited restaurant license shall:
(A) begin on May 1; and
(B) end on October 31.
(ii) A limited restaurant license granted for operation during a winter time period isknown as a "Seasonal B" limited restaurant license. The period of operation for a "Seasonal B"limited restaurant license shall:
(A) begin on November 1; and
(B) end on April 30.
(iii) In determining the number of limited restaurant licenses that the commission maygrant under this section:
(A) a seasonal limited restaurant license is counted as one-half of one limited restaurantlicense; and
(B) each "Seasonal A" limited restaurant license shall be paired with a "Seasonal B"limited restaurant license.
(c) If the location, design, and construction of a hotel may require more than one limitedrestaurant sales location within the hotel to serve the public convenience, the commission mayauthorize the sale of wine, heavy beer, and beer at as many as three limited restaurant locationswithin the hotel under one license if:
(i) the hotel has a minimum of 150 guest rooms; and
(ii) all locations under the license are:
(A) within the same hotel facility; and
(B) on premises that are:
(I) managed or operated by the licensee; and
(II) owned or leased by the licensee.
(d) A facility other than a hotel shall have a separate limited restaurant license for eachrestaurant where wine, heavy beer, and beer are sold.
(4) (a) Except as otherwise provided in this Subsection (4), the premises of a limitedrestaurant license may not be established:
(i) within 600 feet of a community location, as measured by the method in Subsection(4)(f); or
(ii) within 200 feet of a community location, measured in a straight line from the nearestentrance of the proposed outlet to the nearest property boundary of the community location.
(b) With respect to the establishment of a limited restaurant license, the commission mayauthorize a variance to reduce the proximity requirement of Subsection (4)(a)(i) if:
(i) the local authority grants its written consent to the variance;
(ii) the commission finds that alternative locations for establishing a limited restaurantlicense in the community are limited;
(iii) a public hearing is held in the city, town, or county, and where practical in theneighborhood concerned;
(iv) after giving full consideration to all of the attending circumstances and the policiesstated in Subsections 32A-1-104(3) and (4), the commission determines that establishing thelicense would not be detrimental to the public health, peace, safety, and welfare of thecommunity; and
(v) (A) the community location governing authority gives its written consent to thevariance; or
(B) when written consent is not given by the community location governing authority,the commission finds that the applicant has established that:
(I) there is substantial unmet public demand to consume alcohol in a public settingwithin the geographic boundary of the local authority in which the limited restaurant licensee isto be located;
(II) there is no reasonably viable alternative for satisfying substantial unmet demanddescribed in Subsection (4)(b)(v)(B)(I) other than through the establishment of a limitedrestaurant license; and
(III) there is no reasonably viable alternative location within the geographic boundary ofthe local authority in which the limited restaurant licensee is to be located for establishing alimited restaurant license to satisfy the unmet demand described in Subsection (4)(b)(v)(B)(I).
(c) With respect to the establishment of a limited restaurant license, the commission mayauthorize a variance that reduces the proximity requirement of Subsection (4)(a)(ii) if:
(i) the community location at issue is:
(A) a public library; or
(B) a public park;
(ii) the local authority grants its written consent to the variance;
(iii) the commission finds that alternative locations for establishing a limited restaurantlicense in the community are limited;
(iv) a public hearing is held in the city, town, or county, and where practical in theneighborhood concerned;
(v) after giving full consideration to all of the attending circumstances and the policiesstated in Subsections 32A-1-104(3) and (4), the commission determines that establishing thelimited restaurant license would not be detrimental to the public health, peace, safety, and
welfare of the community; and
(vi) (A) the community location governing authority gives its written consent to thevariance; or
(B) when written consent is not given by the community location governing authority,the commission finds that the applicant has established that:
(I) there is substantial unmet public demand to consume alcohol in a public settingwithin the geographic boundary of the local authority in which the limited restaurant licensee isto be located;
(II) there is no reasonably viable alternative for satisfying substantial unmet demanddescribed in Subsection (4)(c)(vi)(B)(I) other than through the establishment of a limitedrestaurant license; and
(III) there is no reasonably viable alternative location within the geographic boundary ofthe local authority in which the limited restaurant licensee is to be located for establishing alimited restaurant license to satisfy the unmet demand described in Subsection (4)(c)(vi)(B)(I).
(d) With respect to the premises of a limited restaurant license granted by thecommission that undergoes a change of ownership, the commission may waive or vary theproximity requirements of Subsection (4)(a) in considering whether to grant a limited restaurantlicense to the new owner of the premises if:
(i) (A) the premises previously received a variance reducing the proximity requirement ofSubsection (4)(a)(i); or
(B) the premises received a variance reducing the proximity requirement of Subsection(4)(a)(ii) on or before May 4, 2008; or
(ii) a variance from proximity requirements was otherwise allowed under this title.
(e) With respect to the premises of a limited restaurant license granted by thecommission that undergoes a change of ownership, the commission shall waive or vary theproximity requirements of Subsection (4)(a) in considering whether to grant a limited restaurantlicense to the new owner of the premises if:
(i) when a limited restaurant license was granted to a previous owner, the premises metthe proximity requirements of Subsection (4)(a);
(ii) the premises has had a limited restaurant license at all times since the limitedrestaurant license described in Subsection (4)(e)(i) was granted without a variance; and
(iii) the community location located within the proximity requirements of Subsection(4)(a) after the day on which the limited restaurant license described in Subsection (4)(e)(i) wasgranted.
(f) The 600 foot limitation as described in Subsection (4)(a)(i) is measured from thenearest entrance of the outlet by following the shortest route of ordinary pedestrian travel to theproperty boundary of the community location.
(5) (a) Nothing in this section prevents the commission from considering the proximityof any educational, religious, and recreational facility, or any other relevant factor in reaching adecision on a proposed location.
(b) For purposes of this Subsection (5), "educational facility" includes:
(i) a nursery school;
(ii) an infant day care center; and
(iii) a trade and technical school.
Repealed by Chapter 276, 2010 General Session
Amended by Chapter 383, 2009 General Session