HomeMy WebLinkAboutOrdinance 5251 ORDINANCE NO. 5251
AN ORDINANCE TO AMEND §111.30 RETAIL OF THE CODE OF FAYETTEVILLE TO
COMPLY WITH NEW STATE LAW
WHEREAS, Act 294 of 2009 significantly changed state law concerning Sunday sales of
alcoholic beverages and various permits pertaining to wholesale or retail alcoholic beverages.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends
§111.30 Retail subsection (C) Retail beer and light wine on premises permit by repealing
subsection (2) Hours of operation and enacting a new, replacement subsection (2) as follows:
"(2) Hours of operation. It shall be unlawful for any person to serve, sell, offer
for sale, or give away for consumption on-premises any beer or light wine
between the hours of 1:00 a.m. and 7:00 a.m. on Monday through Saturday, on
Sunday except during the hours of 10:00 a.m. until midnight, on Christmas Day,
or during any 24-hour interval designated an emergency period by the mayor,
City Council, or any person acting in the mayor's or the City Council's capacity."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§111.30 Retail by repealing subsection (E) On premises consumption — Hotel, motel or
restaurant permit, by repealing subsection (3) Hours of operation and enacting a replacement
subsection (3) as follows:
"(3) Hours of operation. It shall be unlawful for any person holding an on-
premises consumption hotel, motel or restaurant permit to sell, offer for sale,
serve, give away, or permit consumption of any controlled beverages between the
hours of 2:00 a.m. and 10:00 a.m. on Monday through Saturday, on Sunday
except between the hours of 10:00 a.m. until midnight, on Christmas Day, or
during any 24-hour interval designated an emergency period by the mayor, City
Council, or any person acting in the Mayor's or the City Council's capacity."
Section 3: That the City Council of the City of Fayetteville, Arkansas
hereby amends §111.30 Retail by repealing subsection (G) in its entirety and
enacting a replacement subsection (G) as shown below:
"(G) Off-premises caterer permit. Authorizes the purchase of alcoholic
beverages from a retailer to transport to a private function which is being catered
by the permit holder and to serve alcoholic beverages to attendees of the private
function in conjunction with catered food.
"(1) Permit fee. There is hereby levied an annual permit fee of$100.00 for July
1, 2009 through June 30, 2010 and $250.00 on July 1, 2010, and thereafter.
"(2) Supplemental beverage tax. Off-premises catering activities will be subject
to the same supplemental beverage taxes, due dates, and penalties as on-premises
consumption hotel, motel, or restaurant permittees in
§111.30(E).
"(3) Hours of operation. The hours of operation for an off-premises catering
permittee shall be the same as those allowed for on-premises cQ�*umgQon hotel,
motel, or restaurant permittees in §11 1.30(E)."
SGp ,
PASSED and APPROVED this 7t' day of July, 2009.
-.FAYETTEVILLE,
co
APPROVED: ATTEST: '9s°9�kFlNSP.J�n'
A' 'P1G70N Go %
r
BY
--, By: �('P �rultlNU
r
I NELD J AN, Mayor SO RA E. SMITH, City Clerk/Treasurer
r G(; AGENDA REQUEST
FOR: COUNCIL MEETING OF JULY 7, 2009
FROM:
CITY ATTORNEY KIT WILLIAMS
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Amend §111.30 Retail Of The Code Of Fayetteville To Comply With
New State Law
APPROVED FOR AGENDA:
Kit Williams Date
City Attorney
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE t,P.(;AL lll;l'ARTMI?NT'
TO: Lioneld Jordan, Mayor
City Council
Greg Tabor, Police Chief
Paul Becker, Finance Director
FROM: Kit Williams, City Attorney �C h
DATE: June 30, 2009
RE: Act 294 of 2009 changes in alcoholic beverage control law relating to
Sunday sales, permit fees, etc.
Attached please find the Police Department's recommended changes and additions
to Chapter 111 Alcoholic Beverages of the Fayetteville Code in response to Act 294 of
2009. 1 certainly concur in the need to amend §111.30 Retail (C) Retail beer and light
wine nn premises permit and (E) On premises consumption — Hotel, motel or restaurant
permit related to their hours of operation provisions.
Act 294 apparently made no change to the regulation of private clubs or retail off-
premises hours. However, the citizens may refer an ordinance to the voters to allow the
sale of alcoholic beverages for off-premises consumption on Sundays. The normal
referendum requirement of 15% of the last general election voters is needed to call a
referred election on Sunday sales for liquor stores.
The Police Department recommends the creation of a new Restaurant Beer and
Wine Permit to made the new A.C.A. §2-4-1001 et seq. state law created by Act 294. I
have drafted a proposed new subsection (H) Restaurant Beer and Wine Permit pursuant
to the Police Department's recommendation.
I also agree with the Police Department's recommendation that we amend
subsection (G) Satellite catering permit by renaming it: "Off-premises caterer's permit"
as it is now referred to by A.C.A. §3-4-901. I will draft a new proposed subsection (G)
Off-premises caterer's permit for your consideration.
I will await your decision about extending the alcoholic beverage serving hours
on a Sunday when it falls on New Year's Eve. State law allows such an extension from
the normal ending hour of 10:00 P.M. to 2:00 A.M. the next day. New Year's Eve for
2009 is on a Thursday; 2010 is on Friday; and 2011 is on Saturday.
Even though the new Restaurant Beer and Wine Permit should require a $175.00
city permit fee, new permit fees cannot take effect until July 1, 2010.
"The permit fees increased or established in this act (294) shall
become effective beginning with the 2010-2011 renewal and
new permit period." Section 29 of Act 294.
Therefore, any changes to the Fayetteville Code concerning new or increased fees
cannot be effective until July 1, 2010, when the City's permits are issued on a fiscal year
basis. I am still studying the new provisions about alcoholic beverage wholesalers.
There is a new "Minimum wholesale liquor permit" with a $2,500.00 state fee. A.C.A.
§3-4-607. However, the legislature kept A.C.A. §3-4-605 Wholesalers and expanded it
to include not only liquor, wine and malt liquors, but beer and kept its permit fee at
$700.00. I have yet to determine why a wholesaler would seek the new "Minimum
wholesale liquor permit" at more than three times the cost of the existing wholesale
liquor permit.
Similarly a beer or wine wholesales must pay "a special tax of$250.00" to operate
in each county (capped at $1,000.00 regardless the number of counties serviced). Why
would a beer distributer (wholesaler) seek a more expensive permit ($700.00 or
$2,500.00) to wholesale beer here? Is this "tax" in addition to the wholesale permit fee?
I will try to figure out this new law prior to July 1, 2010.
Attached is a proposed ordinance changing the Sunday sales ordinances to
conform with state law.
(6/30/2009) Kit Williams -City Ordinance 111 Recommendations for Changes and Additions 4-14-09 doc Page 1
City Ordinance 1 I 1 Recommendations for Changes and Additions
Recommended Changes
Recommended Change #1: In Retail beer and light wine on-premises permit Hours of
Operation p. 9, redefine hours of operation language and remove "on Sunday". (State law
p. 2 now affords, "A person that holds a permit that allows the on-premises consumption
of alcoholic beverages may operate on Sundays between the hours of 10:00 a.m. and
12:00 midnight".)
Recommended Change #2: In On-premises consumption-Hotel, motel or restaurant
permit Hours of Operation p. 10, remove "on any Sunday", and remove "unless that
establishment has a valid Sunday Sales permit issued by the ABC. If an establishment
has a valid Sunday Sales permit, its hours of operation on Sunday shall be governed by
state law (A.C.A $3-9-215)". (State law p. 2 now affords, "A person that holds a permit
that allows the on-premises consumption of alcoholic beverages may operate on Sundays
between the hours of 10:00 a.m. and 12:00 midnight".)
Recommended Additions
Recommended Addition#1: Creation of Restaurant Beer and Wine Permit to match new
permit in state law (State law p. 9 creates state restaurant beer and wine permit).
Recommended Addition 42: Create off-premises caterer's permit to match the state off-
premises caterer's permit. (This was a concern prior to this new state law in that the city's
satellite caterer's permit language does not match the caterers' permits that have been
issued by the state to several caterers operating in Fayetteville)
Recommended Addition 93: Consider adding additional hours of operation on Sundays
that fall on New Year's Eve 10:00 a.m. to 2:00 a.m. (to match state law p. 15, extended
hours on December 31 st falling on Sunday)
ORDINANCE NO.
AN ORDINANCE TO AMEND §111.30 RETAIL OF THE CODE
OF FAYETTEVILLE TO COMPLY WITH NEW STATE LAW
WHEREAS, Act 294 of 2009 significantly changed state law concerning Sunday sales of
alcoholic beverages and various permits pertaining to wholesale or retail alcoholic beverages.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends
§111.30 Retail subsection (C) Retail beer and light wine on premises permit by repealing
subsection (2) Hours of operation and enacting a new, replacement subsection(2) as follows:
"(2) Hours of operation. It shall be unlawful for any person to serve,
sell, offer for sale, or give away for consumption on-premises any beer
or light wine between the hours of 1:00 a.m, and 7:00 a.m. on Monday
through Saturday, on Sunday except during the hours of 10:00 a.m. until
midnight, on Christmas Day, or during any 24-hour interval designated
an emergency period by the mayor, City Council, or any person acting
in the mayor's or the City Council's capacity."
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends
§111.30 Retail by repealing subsection (E) On premises consumption — Hotel, motel or
restaurant permit, by repealing subsection (3) Hours of operation and enacting a replacement
subsection (3) as follows:
"(3) Hours of operation. It shall be unlawful for any person holding
an on-premises consumption hotel, motel or restaurant permit to sell,
offer for sale, serve, give away, or permit consumption of any controlled
beverages between the hours of 2:00 a.m, and 10:00 a.m. on Monday
through Saturday, on Sunday except between the hours of 10:00 a.m.
until midnight, on Christmas Day, or during any 24-hour interval designated
an emergency period by the mayor, City Council, or any person acting in
the Mayor's or the City Council's capacity."
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby amends
§111.30 Retail by repealing subsection (G) in its entirety and enacting a replacement subsection
(G) as shown below:
"(G) Off-premises caterer permit. Authorizes the purchase of
alcoholic beverages from a retailer to transport to a private function
which is being catered by the permit holder and to serve alcoholic
beverages to attendees of the private function in conjunction with catered
food.
"(1) Permit fee. There is hereby levied an annual permit fee of$100.00
for July 1, 2009 through June 30, 2010 and $250.00 on July 1, 2010,
and thereafter.
"(2) Supplemental beverage tax. Off-premises catering activities will be
subject to the same supplemental beverage taxes, due dates, and penalties
as on-premises consumption hotel, motel, or restaurant permittees in
§111.30(E).
"(3) Hours of operation. The hours of operation for an off-premises
catering permittee shall be the same as those allowed for
on-premises consumption hotel, motel, or restaurant permittees in §111.30(E)."
PASSED and APPROVED this 761 day of July, 2009.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
t fl
z Jr i� f S z_ I� e.
THE CITY OF FAYETTEVI LLE,ARKANSAS
I l ? t\
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ArTORNCY
>u
DEPARTMENTAL CORRESPONDENCE
i.,z 7a'd'I
TO: Lioneld Jordan, Mayor
City Council
Don Marr, Chief of Staff
FROM: Kit Williams, City Attorney\
DATE: July 6, 2009
RE: Municipal permits to sell alcoholic beverages on Sundays
With the many changes to the Arkansas Code relating to Alcoholic Beverages passed
by the 2009 Legislature, I have been reviewing the law in relation to our Fayetteville Code. I
have proposed changes allowing Sunday sales for establishments selling beer and wine
which are not liquor-by-the-drink restaurants (which already allow Sunday sales). Although
there are now no state law prohibitions against Sunday sales for these bars, I believe the City
would still be empowered to prohibit Sunday sales pursuant to A.C.A. §3-5-213:
"Cities and towns may impose additional restrictions ...
providing hours of opening and closing and such other
rules and regulations as will promote public health,
morals, and safety which they may by ordinance provide."
When the City regulated the closing hours for private clubs, we were challenged by a
private club owner, but we prevailed in Circuit Court and also on appeal to the Arkansas
Supreme Court. The Arkansas Supreme Court rejected an argument that sate law had
preempted such regulation or that the City ordinance was in conflict with state law. Tornl2os
v City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983).
Although the new state law says a bar owner "may operate on Sundays between the
hours of 10:00 a.m. and 12:00 midnight" (Act 294), I believe the still effective A.C.A. §3-5-
213 would authorize "additional restrictions ... providing hours of opening and closing" to
be set by the City Council.
CONCLUSION
The City Council can allow Sunday sales for establishments selling beer and wine
which previously were prohibited from Sunday sales by state law. The City Council is not
bound by the state statutorily allowed hours 10:00 a.m. until midnight on Sundays and
may prescribe a shorter period.
RECEIVED
Democrat
� {' JUL -1:0 2009
Atkma5 l lemoc ax'„.�t.' ”1{.Y CITY OF FAYETTEVILLE
•- • • CITY CLERK'S OFFICE
Northwest Arkansas Times
Benton County Daily Record
P. O. BOX 1607
FAYETTEVILLE, AR 72702
PHONE: 479-571-6421
AFFIDAVIT OF PUBLICATION
I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Arkansas
Democrat Gazette newspaper. Printed and published in Benton County
Arkansas, (Lowell) and that from my own personal knowledge and
reference to the files of said publication, the advertisement of: City of
Fayetteville — Ordinance 5251
July 12, 2009
Publication Charge : $ 123.74
Signed: 6 Z—!—�ZI-6——1�—---------
Subscribed and sworn to before me
This fie/ day of j c-.Qr 2009.
Notary Public C L Q.
My Commission Expires: 1� o2e 12-
Do not pay from Affidavit, an invoice will be sent Mdti i`!.R�
W j`S�1OjA®
PUS0 0F'
RECEIVED
JUL 2"0 2009
"oeDINANCfi xo asst CITY OF FAYETTEVILLE
-, }aN Uk3DINANCE TO AMENfS"-§117 00 PETA14,OF CITY CLERKS OFFICE
jNEW STATE LAW AYEfTEVILLE TO COMPLY WITH
del
ERIEREABr e294 of 2009 sjgnlryoerrtly changetl aye
`. state law cobbernrning Sun tlay sales of alcoholic bev
eragesandva(tousp nnnfte,per(aiRing to wholesale '"IA RNAN SAS ,
or retail aldondiic b"e4erages'
r` MOW TNER�FORE�BEsIT ORDAINED BY THE CITY COBRCIL`v.'O�rTNE�CITy Op :
FArfiTTRYI� N51xEAH ;x .�
wv s
6ectloR)7 7h {he Cty�,CouoothCti yy' e,GJletgrkenses hate „g��f'f�3oBatill
ope aeon na C"�nachn,„glnan8 I�l!1.�"P,�$°�Prem�ea%penult by repeal ngb§dbsecBpd 2 flours of
� (2��U14 of oP�1�on hdifb�vRul�Tot'�y(Peaonllt arve 9 o ef,-Jor sale &v.
.� oryl�e$vyay forrgnsu�tjor�o�p e re§s,�y�e¢r pr Ilght WJnB between t}ie(fours of
1rOp�a r�end 700,a rA on Monda�rpu9J�SaWrdey oR:Suntlay except tlu[mg the
tle's`f�f 1000 a m until rAldorg ,gr Chnetrnas Day or tlw1d9 any 24hourunfervel
� ,�,9Ra7@e amemergeRcy peLlotl by the mayor Clry Councll,or any perspn scbng m
th �xyo-orfs or the CIry Councle capacity v,:,
t �
z ,+ye City Council Of The Crtypf Faye e�lie/�}kensas hbreby,atRande§71130 Retail ;
,� by rape Ingyechor)(E)On premises cnnsum ton Hotel motel pr restaurant perrplt by repeal
log subs„e�p app )Houre of o eratl and
q, xx 4, P °r4, enacting a replacement subseohop,(a as follows
(3) Hod Ko' eration It shall tie unlawful for ad k p u P 1
r Y parsoa°�rioltlin an qn premisee bo s m t oR `
hotel mota�yo�re�aurant permit to Bell offer for�ale'fiseive glue away�or pefmit consumption ofaRy.
�� eorrtroJl�,keve�ages between the hours of 2 00 a tit and 10l)D a m on Montlay through Saturday :.
x on Sunday except between fhe hours of 10 00 am�iinhl mrtlnrght on�hnstmas Dey or dmmg any 1
�` n�Neu(rJltervaMdasign�e��orik tepee typehotl by Me ma or Cary Oounclf or§ny peaon i3ohn9 .�
Mayor the CI y
Sectoa 3 That the Crry Counal of
a`II the Cary of Fayetteville grkansas hereb s
s §'11�ifl0fRetby repealing subseot G I Its a ore antl nacffng a replac�em
-sechon(Oyes"'
shown b>?Ipw {°«S.O F ry
-,
(G) OX premises
from a retailer to t 0�^�t P � Authorizes ih'e'�'�u[chase of alcoholic bevaragQs
I ho der and to'r �°sp�`h§0'a private*fgnctlgn which rs befog catered by the')iglmit
1 serye alto Dile beLeragesto attentlees of the prJvete 1unc0on m/con � I
)unction Wffhfceteretl food } �s � y, "7 a
. (1)Pelmitfee�'{�ere is herehylewedxerl anRuaipeFmrtrfeeyf$IOQ 00 fof JuJy12009
through Junep ry,� 201g antlithereafter 2rr
�, 7 and$2500p on Ju 1
(2) Supplemental beverage taX Off premises este n v3 r
same sppplemental beve a e aaea� R 9sac0`Jle§will be sub ecf Nie
sumption hotel motel or e 9 taryes tlue tltand penaes•as on pr;mises''con
6-
4.,
permitteesrn r �
x
(3) Hours of-operation The"Hou
re of operati`ortforanoff piemi
owed forses osteon ��"�
1 shallrbe§the seine as Be,all p(emrseseonsu9Per`rpittee
op mpcon(hotel'motel or
t � restaurant permittees m§111 flp E) n
( t
DAB$ED ami APPROVfi6thi Tth?day of July,2009 r r
i APPROVED ! '`•,
y,. _ ATTEST
LIONELD JOR By "
Y SONOIW E,BMITN,CNY CIerW7ksaauree
