First Substitute H.B. 223

Representative Gage Froerer proposes the following substitute bill:

1 ALCOHOLIC BEVERAGE CONTROL ACT AND
2 LICENSES
3 2010 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Gage Froerer
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Alcoholic Beverage Control Act to address the number of certain
11 licenses the Alcoholic Beverage Control Commission may issue.
12 Highlighted Provisions:
13 This bill:
14 . modifies the restriction on the number of restaurant liquor licenses that may be
15 issued;
16 . modifies the restriction on the number of limited restaurant licenses that may be
17 issued;
18 . modifies the restriction on the number of tavern on-premise beer licenses that may
19 be issued; and
20 . makes technical and conforming amendments.
21 Monies Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:

26 AMENDS:
27 32A-4-101, as last amended by Laws of Utah 2009, Chapter 383
28 32A-4-302, as last amended by Laws of Utah 2009, Chapter 383
29 32A-10-201, as last amended by Laws of Utah 2009, Chapter 383
30
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 32A-4-101 is amended to read:
33 32A-4-101. Commission's power to grant licenses -- Limitations.
34 (1) Before a restaurant may sell or allow the consumption of liquor on its premises, it
35 shall first obtain a license from the commission as provided in this part.
36 (2) The commission may grant restaurant liquor licenses for the purpose of establishing
37 restaurant liquor outlets at places and in numbers it considers proper for the storage, sale, and
38 consumption of liquor on premises operated as public restaurants.
39 (3) (a) Subject to the other provisions of this Subsection (3) and Subsection
40 32A-4a-201 (2), the total number of restaurant liquor licenses may not at any time aggregate
41 more than that number determined by dividing the population of the state by [5,200] 5,000.
42 (b) For purposes of this Subsection (3), population shall be determined by:
43 (i) the most recent United States decennial or special census; or
44 (ii) another population determination made by the United States or state governments.
45 (c) (i) The commission may grant seasonal restaurant liquor licenses established in
46 areas the commission considers necessary.
47 (ii) A seasonal restaurant liquor license shall be for a period of six consecutive months.
48 (iii) A restaurant liquor license granted for operation during a summer time period is
49 known as a "Seasonal A" restaurant liquor license. The period of operation for a "Seasonal A"
50 restaurant liquor license shall:
51 (A) begin on May 1; and
52 (B) end on October 31.
53 (iv) A restaurant liquor license granted for operation during a winter time period is
54 known as a "Seasonal B" restaurant liquor license. The period of operation for a "Seasonal B"
55 restaurant liquor license shall:
56 (A) begin on November 1; and

57 (B) end on April 30.
58 (v) In determining the number of restaurant liquor licenses that the commission may
59 issue under this section:
60 (A) a seasonal license is counted as one-half of one restaurant liquor license; and
61 (B) each "Seasonal A" license shall be paired with a "Seasonal B" license.
62 (d) (i) If the location, design, and construction of a hotel may require more than one
63 restaurant liquor sales location within the hotel to serve the public convenience, the
64 commission may authorize the sale of liquor at as many as three restaurant locations within the
65 hotel under one restaurant liquor license if:
66 (A) the hotel has a minimum of 150 guest rooms; and
67 (B) all locations under the restaurant liquor license are:
68 (I) within the same hotel facility; and
69 (II) on premises that are managed or operated and owned or leased by the licensee.
70 (ii) A facility other than a hotel shall have a separate restaurant liquor license for each
71 restaurant where liquor is sold.
72 (4) (a) Except as otherwise provided in this Subsection (4), the premises of a restaurant
73 liquor license may not be established:
74 (i) within 600 feet of a community location, as measured by the method in Subsection
75 (4)(f); or
76 (ii) within 200 feet of a community location, measured in a straight line from the
77 nearest entrance of the proposed outlet to the nearest property boundary of the community
78 location.
79 (b) With respect to the establishment of a restaurant liquor license, the commission
80 may authorize a variance to reduce the proximity requirement of Subsection (4)(a)(i) if:
81 (i) the local authority grants its written consent to the variance;
82 (ii) the commission finds that alternative locations for establishing a restaurant liquor
83 license in the community are limited;
84 (iii) a public hearing is held in the city, town, or county, and where practical in the
85 neighborhood concerned;
86 (iv) after giving full consideration to all of the attending circumstances and the policies
87 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the

88 restaurant liquor license would not be detrimental to the public health, peace, safety, and
89 welfare of the community; and
90 (v) (A) the community location governing authority gives its written consent to the
91 variance; or
92 (B) when written consent is not given by the community location governing authority,
93 the commission finds that the applicant has established that:
94 (I) there is substantial unmet public demand to consume alcohol in a public setting
95 within the geographic boundary of the local authority in which the restaurant is to be located;
96 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
97 described in Subsection (4)(b)(v)(B)(I) other than through the establishment of a restaurant
98 liquor license; and
99 (III) there is no reasonably viable alternative location within the geographic boundary
100 of the local authority in which the restaurant is to be located for establishing a restaurant liquor
101 license to satisfy the unmet demand described in Subsection (4)(b)(v)(B)(I).
102 (c) With respect to the establishment of a restaurant liquor license, the commission
103 may authorize a variance that reduces the proximity requirement of Subsection (4)(a)(ii) if:
104 (i) the community location at issue is:
105 (A) a public library; or
106 (B) a public park;
107 (ii) the local authority grants its written consent to the variance;
108 (iii) the commission finds that alternative locations for establishing a restaurant liquor
109 license in the community are limited;
110 (iv) a public hearing is held in the city, town, or county, and where practical in the
111 neighborhood concerned;
112 (v) after giving full consideration to all of the attending circumstances and the policies
113 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the
114 restaurant liquor license would not be detrimental to the public health, peace, safety, and
115 welfare of the community; and
116 (vi) (A) the community location governing authority gives its written consent to the
117 variance; or
118 (B) when written consent is not given by the community location governing authority,

119 the commission finds that the applicant has established that:
120 (I) there is substantial unmet public demand to consume alcohol in a public setting
121 within the geographic boundary of the local authority in which the restaurant is to be located;
122 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
123 described in Subsection (4)(c)(vi)(B)(I) other than through the establishment of a restaurant
124 liquor license; and
125 (III) there is no reasonably viable alternative location within the geographic boundary
126 of the local authority in which the restaurant is to be located for establishing a restaurant liquor
127 license to satisfy the unmet demand described in Subsection (4)(c)(vi)(B)(I).
128 (d) With respect to the premises of a restaurant liquor license granted by the
129 commission that undergoes a change of ownership, the commission may waive or vary the
130 proximity requirements of Subsection (4)(a) in considering whether to grant a restaurant liquor
131 license to the new owner of the premises if:
132 (i) (A) the premises previously received a variance reducing the proximity requirement
133 of Subsection (4)(a)(i); or
134 (B) the premises received a variance reducing the proximity requirement of Subsection
135 (4)(a)(ii) on or before May 4, 2008; or
136 (ii) a variance from proximity requirements was otherwise allowed under this title.
137 (e) With respect to the premises of a restaurant liquor license granted by the
138 commission that undergoes a change of ownership, the commission shall waive or vary the
139 proximity requirements of Subsection (4)(a) in considering whether to grant a restaurant liquor
140 license to the new owner of the premises if:
141 (i) when a restaurant liquor license was granted to a previous owner, the premises met
142 the proximity requirements of Subsection (4)(a);
143 (ii) the premises has had a restaurant liquor license at all times since the restaurant
144 liquor license described in Subsection (4)(e)(i) was granted without a variance; and
145 (iii) the community location located within the proximity requirements of Subsection
146 (4)(a) after the day on which the restaurant liquor license described in Subsection (4)(e)(i) was
147 granted.
148 (f) The 600 foot limitation described in Subsection (4)(a)(i) is measured from the
149 nearest entrance of the outlet by following the shortest route of ordinary pedestrian travel to the

150 community location.
151 (5) (a) Nothing in this section prevents the commission from considering the proximity
152 of any educational, religious, and recreational facility, or any other relevant factor in reaching a
153 decision on a proposed location.
154 (b) For purposes of this Subsection (5), "educational facility" includes:
155 (i) a nursery school;
156 (ii) an infant day care center; and
157 (iii) a trade and technical school.
158 Section 2. Section 32A-4-302 is amended to read:
159 32A-4-302. Commission's power to grant licenses -- Limitations.
160 (1) A restaurant wanting to sell and allow the consumption of only wine, heavy beer,
161 and beer on its premises, but not spirituous liquor or a flavored malt beverage, shall obtain a
162 limited restaurant license from the commission as provided in this part before selling or
163 allowing the consumption of wine, heavy beer, or beer on its premises.
164 (2) (a) Subject to the other provisions of this section and Subsection 32A-4a-201 (2),
165 the commission may grant limited restaurant licenses for the purpose of establishing limited
166 restaurant outlets at places and in numbers the commission considers proper for the storage,
167 sale, and consumption of wine, heavy beer, and beer on premises operated as public
168 restaurants.
169 (b) The total number of limited restaurant licenses granted under this part may not at
170 any time aggregate more than that number determined by dividing the population of the state
171 by [9,300] 8,700.
172 (c) For purposes of this Subsection (2), population shall be determined by:
173 (i) the most recent United States decennial or special census; or
174 (ii) another population determination made by the United States or state governments.
175 (3) (a) (i) The commission may grant seasonal limited restaurant licenses established in
176 areas the commission considers necessary.
177 (ii) A seasonal limited restaurant license shall be for a period of six consecutive
178 months.
179 (b) (i) A limited restaurant license granted for operation during a summer time period
180 is known as a "Seasonal A" limited restaurant license. The period of operation for a "Seasonal

181 A" limited restaurant license shall:
182 (A) begin on May 1; and
183 (B) end on October 31.
184 (ii) A limited restaurant license granted for operation during a winter time period is
185 known as a "Seasonal B" limited restaurant license. The period of operation for a "Seasonal B"
186 limited restaurant license shall:
187 (A) begin on November 1; and
188 (B) end on April 30.
189 (iii) In determining the number of limited restaurant licenses that the commission may
190 grant under this section:
191 (A) a seasonal limited restaurant license is counted as one-half of one limited
192 restaurant license; and
193 (B) each "Seasonal A" limited restaurant license shall be paired with a "Seasonal B"
194 limited restaurant license.
195 (c) If the location, design, and construction of a hotel may require more than one
196 limited restaurant sales location within the hotel to serve the public convenience, the
197 commission may authorize the sale of wine, heavy beer, and beer at as many as three limited
198 restaurant locations within the hotel under one limited restaurant license if:
199 (i) the hotel has a minimum of 150 guest rooms; and
200 (ii) all locations under the limited restaurant license are:
201 (A) within the same hotel facility; and
202 (B) on premises that are:
203 (I) managed or operated by the limited restaurant licensee; and
204 (II) owned or leased by the limited restaurant licensee.
205 (d) A facility other than a hotel shall have a separate limited restaurant license for each
206 restaurant where wine, heavy beer, and beer are sold.
207 (4) (a) Except as otherwise provided in this Subsection (4), the premises of a limited
208 restaurant license may not be established:
209 (i) within 600 feet of a community location, as measured by the method in Subsection
210 (4)(f); or
211 (ii) within 200 feet of a community location, measured in a straight line from the

212 nearest entrance of the proposed outlet to the nearest property boundary of the community
213 location.
214 (b) With respect to the establishment of a limited restaurant license, the commission
215 may authorize a variance to reduce the proximity requirement of Subsection (4)(a)(i) if:
216 (i) the local authority grants its written consent to the variance;
217 (ii) the commission finds that alternative locations for establishing a limited restaurant
218 license in the community are limited;
219 (iii) a public hearing is held in the city, town, or county, and where practical in the
220 neighborhood concerned;
221 (iv) after giving full consideration to all of the attending circumstances and the policies
222 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the
223 license would not be detrimental to the public health, peace, safety, and welfare of the
224 community; and
225 (v) (A) the community location governing authority gives its written consent to the
226 variance; or
227 (B) when written consent is not given by the community location governing authority,
228 the commission finds that the applicant has established that:
229 (I) there is substantial unmet public demand to consume alcohol in a public setting
230 within the geographic boundary of the local authority in which the limited restaurant licensee is
231 to be located;
232 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
233 described in Subsection (4)(b)(v)(B)(I) other than through the establishment of a limited
234 restaurant license; and
235 (III) there is no reasonably viable alternative location within the geographic boundary
236 of the local authority in which the limited restaurant licensee is to be located for establishing a
237 limited restaurant license to satisfy the unmet demand described in Subsection (4)(b)(v)(B)(I).
238 (c) With respect to the establishment of a limited restaurant license, the commission
239 may authorize a variance that reduces the proximity requirement of Subsection (4)(a)(ii) if:
240 (i) the community location at issue is:
241 (A) a public library; or
242 (B) a public park;

243 (ii) the local authority grants its written consent to the variance;
244 (iii) the commission finds that alternative locations for establishing a limited restaurant
245 license in the community are limited;
246 (iv) a public hearing is held in the city, town, or county, and where practical in the
247 neighborhood concerned;
248 (v) after giving full consideration to all of the attending circumstances and the policies
249 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the
250 limited restaurant license would not be detrimental to the public health, peace, safety, and
251 welfare of the community; and
252 (vi) (A) the community location governing authority gives its written consent to the
253 variance; or
254 (B) when written consent is not given by the community location governing authority,
255 the commission finds that the applicant has established that:
256 (I) there is substantial unmet public demand to consume alcohol in a public setting
257 within the geographic boundary of the local authority in which the limited restaurant licensee is
258 to be located;
259 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
260 described in Subsection (4)(c)(vi)(B)(I) other than through the establishment of a limited
261 restaurant license; and
262 (III) there is no reasonably viable alternative location within the geographic boundary
263 of the local authority in which the limited restaurant licensee is to be located for establishing a
264 limited restaurant license to satisfy the unmet demand described in Subsection (4)(c)(vi)(B)(I).
265 (d) With respect to the premises of a limited restaurant license granted by the
266 commission that undergoes a change of ownership, the commission may waive or vary the
267 proximity requirements of Subsection (4)(a) in considering whether to grant a limited
268 restaurant license to the new owner of the premises if:
269 (i) (A) the premises previously received a variance reducing the proximity requirement
270 of Subsection (4)(a)(i); or
271 (B) the premises received a variance reducing the proximity requirement of Subsection
272 (4)(a)(ii) on or before May 4, 2008; or
273 (ii) a variance from proximity requirements was otherwise allowed under this title.

274 (e) With respect to the premises of a limited restaurant license granted by the
275 commission that undergoes a change of ownership, the commission shall waive or vary the
276 proximity requirements of Subsection (4)(a) in considering whether to grant a limited
277 restaurant license to the new owner of the premises if:
278 (i) when a limited restaurant license was granted to a previous owner, the premises met
279 the proximity requirements of Subsection (4)(a);
280 (ii) the premises has had a limited restaurant license at all times since the limited
281 restaurant license described in Subsection (4)(e)(i) was granted without a variance; and
282 (iii) the community location located within the proximity requirements of Subsection
283 (4)(a) after the day on which the limited restaurant license described in Subsection (4)(e)(i) was
284 granted.
285 (f) The 600 foot limitation as described in Subsection (4)(a)(i) is measured from the
286 nearest entrance of the outlet by following the shortest route of ordinary pedestrian travel to the
287 property boundary of the community location.
288 (5) (a) Nothing in this section prevents the commission from considering the proximity
289 of any educational, religious, and recreational facility, or any other relevant factor in reaching a
290 decision on a proposed location.
291 (b) For purposes of this Subsection (5), "educational facility" includes:
292 (i) a nursery school;
293 (ii) an infant day care center; and
294 (iii) a trade and technical school.
295 Section 3. Section 32A-10-201 is amended to read:
296 32A-10-201. Commission's power to grant licenses -- Limitations.
297 (1) Before an establishment may sell beer at retail for on-premise consumption, it shall
298 first obtain:
299 (a) an on-premise beer retailer license from the commission as provided in this part;
300 and
301 (b) (i) a license issued by the local authority, as provided in Section 32A-10-101 , to
302 sell beer at retail for on-premise consumption; or
303 (ii) other written consent of the local authority to sell beer at retail for on-premise
304 consumption.

305 (2) (a) Subject to the requirements of this section and Subsection 32A-4a-201 (2), the
306 commission may grant on-premise beer retailer licenses for the purpose of establishing
307 on-premise beer retailer outlets at places and in numbers as it considers proper for the storage,
308 sale, and consumption of beer on premises operated as on-premise beer retailer outlets.
309 (b) Notwithstanding Subsection (2)(a), the total number of on-premise beer retailer
310 licenses that are taverns may not at any time aggregate more than that number determined by
311 dividing the population of the state by [30,500] 53,400.
312 (c) For purposes of this Subsection (2), the population of the state shall be determined
313 by:
314 (i) the most recent United States decennial special census; or
315 (ii) another population determination made by the United States or state governments.
316 (d) (i) The commission may issue seasonal licenses for taverns established in areas the
317 commission considers necessary.
318 (ii) A seasonal license for taverns shall be for a period of six consecutive months.
319 (iii) An on-premise beer retailer license for a tavern issued for operation during a
320 summer time period is known as a "Seasonal A" on-premise beer retailer license for a tavern.
321 The period of operation for a "Seasonal A" on-premise beer retailer license for a tavern shall:
322 (A) begin on May 1; and
323 (B) end on October 31.
324 (iv) An on-premise beer retailer license for a tavern granted for operation during a
325 winter time period is known as a "Seasonal B" on-premise beer retailer license for a tavern.
326 The period of operation for a "Seasonal B" on-premise beer retailer license for a tavern shall:
327 (A) begin on November 1; and
328 (B) end on April 30.
329 (v) In determining the number of tavern licenses that the commission may grant under
330 this section:
331 (A) a seasonal on-premise beer retailer license for a tavern is counted as one-half of
332 one on-premise beer retailer license for a tavern; and
333 (B) each "Seasonal A" on-premise beer retailer license for a tavern shall be paired with
334 a "Seasonal B" on-premise beer retailer license for a tavern.
335 (3) (a) Except as provided in Subsection (3)(b), (c), or (d), the premises of an

336 on-premise beer retailer license may not be established:
337 (i) within 600 feet of a community location, as measured by the method in Subsection
338 (3)(e); or
339 (ii) within 200 feet of a community location, measured in a straight line from the
340 nearest entrance of the proposed outlet to the nearest property boundary of the community
341 location.
342 (b) With respect to the establishment of an on-premise beer retailer license, the
343 commission may authorize a variance to reduce the proximity requirement of Subsection
344 (3)(a)(i) if:
345 (i) the local authority grants its written consent to the variance;
346 (ii) the commission finds that alternative locations for establishing an on-premise beer
347 retailer license in the community are limited;
348 (iii) a public hearing is held in the city, town, or county, and where practical, in the
349 neighborhood concerned;
350 (iv) after giving full consideration to all of the attending circumstances and the policies
351 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the
352 license would not be detrimental to the public health, peace, safety, and welfare of the
353 community; and
354 (v) (A) the community location governing authority gives its written consent to the
355 variance; or
356 (B) when written consent is not given by the community location governing authority,
357 the commission finds that the applicant has established that:
358 (I) there is substantial unmet public demand to consume alcohol in a public setting
359 within the geographic boundary of the local authority in which the on-premise beer retailer
360 licensee is to be located;
361 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
362 described in Subsection (3)(b)(v)(B)(I) other than through the establishment of an on-premise
363 beer retailer license; and
364 (III) there is no reasonably viable alternative location within the geographic boundary
365 of the local authority in which the on-premise beer retailer licensee is to be located for
366 establishing an on-premise beer retailer license to satisfy the unmet demand described in

367 Subsection (3)(b)(v)(B)(I).
368 (c) With respect to the establishment of an on-premise beer retailer license, the
369 commission may authorize a variance that reduces the proximity requirement of Subsection
370 (3)(a)(ii) if:
371 (i) the community location at issue is:
372 (A) a public library; or
373 (B) a public park;
374 (ii) the local authority grants its written consent to the variance;
375 (iii) the commission finds that alternative locations for establishing an on-premise beer
376 retailer license in the community are limited;
377 (iv) a public hearing is held in the city, town, or county, and where practical in the
378 neighborhood concerned;
379 (v) after giving full consideration to all of the attending circumstances and the policies
380 stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the
381 on-premise beer retailer license would not be detrimental to the public health, peace, safety,
382 and welfare of the community; and
383 (vi) (A) the community location governing authority gives its written consent to the
384 variance; or
385 (B) when written consent is not given by the community location governing authority,
386 the commission finds that the applicant has established that:
387 (I) there is substantial unmet public demand to consume alcohol in a public setting
388 within the geographic boundary of the local authority in which the on-premise beer retailer
389 licensee is to be located;
390 (II) there is no reasonably viable alternative for satisfying substantial unmet demand
391 described in Subsection (3)(c)(vi)(B)(I) other than through the establishment of an on-premise
392 beer retailer license; and
393 (III) there is no reasonably viable alternative location within the geographic boundary
394 of the local authority in which the on-premise beer retailer licensee is to be located for
395 establishing an on-premise beer retailer license to satisfy the unmet demand described in
396 Subsection (3)(c)(vi)(B)(I).
397 (d) (i) With respect to an on-premise beer retailer license granted by the commission

398 before July 1, 1991, to an establishment that undergoes a change in ownership after that date,
399 the commission may waive or vary the proximity requirements of this Subsection (3) in
400 considering whether to grant an on-premise retailer beer license to the new owner.
401 (ii) With respect to the premises of an on-premise beer retailer license granted by the
402 commission that undergoes a change of ownership, the commission may waive or vary the
403 proximity requirements of Subsection (3)(a) in considering whether to grant an on-premise beer
404 retailer license to the new owner of the premises if:
405 (A) (I) the premises previously received a variance from the proximity requirement of
406 Subsection (3)(a)(i); or
407 (II) the premises received a variance from the proximity requirement of Subsection
408 (3)(a)(ii) on or before May 4, 2008; or
409 (B) a variance from proximity requirements was otherwise allowed under this title.
410 (e) The 600 foot limitation described in Subsection (3)(a)(i) is measured from the
411 nearest entrance of the outlet by following the shortest route of ordinary pedestrian travel to the
412 property boundary of the community location.
413 (4) (a) Nothing in this section prevents the commission from considering the proximity
414 of any educational, religious, and recreational facility, or any other relevant factor in reaching a
415 decision on a proposed location.
416 (b) For purposes of this Subsection (4), "educational facility" includes:
417 (i) a nursery school;
418 (ii) an infant day care center; and
419 (iii) a trade and technical school.