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TC Ord. No. 2005-01 Amending chapter 5.08 muni code of the TOA as it relates to the modification of licensed premises and undue concentration of licensesTOWN OF AVON, COLORAOD ORDINANCE NO. 05-01 SERIES OF 2005 AN ORDINANCE AMENDING CHAPTER 5.08, MUNICIPAL CODE OF THE TOWN OF AVON, AS IT RELATES TO THE MODIFICATION OF LICENSED PREMISES AND UNDUE CONCENTRATION OF LICENSES COLORADO: BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, Section 1. Amendment. Subsection (b) of Section 5.08.070, Chapter 5.08 of Title 5, Avon Municipal Code, is amended to provide as follows: (b) The burden of proof in an application for a new license, for the modification of licensed premises or for the transfer of an existing license shall be upon the applicant. The burden of proof in any proceeding to revoke or suspend a license shall be upon the Town or the party seeking revocation-or suspension. In a renewal hearing there shall be no presumption or burden of proof, unless and until such time as some unfavorable testimony or exhibit is received, at which point the burden shall become that of the licensee to demonstrate by a preponderance of the evidence that the license should be renewed. Meetings and hearings of the Local Licensing Authority may be adjourned or continued to such other times as may be suitable and reasonably convenient for the parties involved. Section 2. Amendment. Section 5.08.130, Chapter 5.08 of Title 5, Avon Municipal Code, is amended by the addition of a new Subsection (c) to provide as follows: (c) For purpose of determining if the issuance of a new tavern or retail liquor store license would result in or add to an undue concentration of the same class of license and, as a result, require the use of additional law enforcement resources, the Local Liquor Licensing Authority may consider factors, including, but not limited to: (1) The ratio of the number of tavern or retail liquor store licenses in the Town of Avon to the population of neighborhood of the Town of Avon, compared to the ratio of the number of tavern or retail liquor store licenses in Eagle County to the population of Eagle County. (2) The distance between the premises.of the applicant and the premises of other holders of the same class of license. (3) Published data concerning the concentration of tavern or liquor store licenses and its effect on the need for law enforcement resources; and (4) Testimony concerning the use of law enforcement resources by law enforcement officials with the responsibility for law enforcement in the Town of Avon. Section 3. Amendment. Subsections (c) and (d) of Section 5.08.130, Chapter 5.08 of Title 5, Avon Municipal Code, are relettered to be Subsections (d) and (e). Section 4. Amendment. Section 5.08.150, Chapter 5.08 of Title 5, Avon Municipal Code, is renamed Modification of licensed premises and changes in location, ownership or manager and Subsection (a) is amended to provide as follows: (a) To achieve a modification of licensed premises or a change in the location of a licensed outlet, the applicant shall submit all forms and material required by the State Liquor Enforcement Division, a fee to the Town of one hundred fifty dollars ($150.00) for actual and necessary expenses incurred in connection with processing the application, and any additional materials as reasonably required by the Town Attorney, Town Clerk or Police Chief, as well as any information, testimony or documents required by the Local Liquor Licensing Authority. In making its decision with respect to a modification of licensed premises or a change in the location of a"licensed outlet, the Local Liquor Licensing Authority shall take into consideration the reasonable requirements of the neighborhood and the desires of adult inhabitants. INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED the 22nd day of March, 2005, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on the 12th day of April, 2005, at 5:30 P.M. in the Council embers, Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. OF -4,kp Ta of on, Colorado A 1-4 Ronald C. Wolfe, Mayor ATT ' T: c Patty c envy, p`wr Clerk Ordinance No. 05-01 Liquor Code Page 2 of 3 INTRODUCED, FINALLY APPROVED, PASSED ON SECOND READING AND ORDERED POSTED the 12th day of April 2005. AT ST: a,uJ - r'i APP OV AS TO FORM: Jo W. Dunn, Town Attorney To f Avon, Colo do C_ Z~"~A Ronald C. Wolfe, Mayor Ordinance No. 05-01 Liquor Code Page 3 of 3 Memo To: Avon Liquor Licensing Authority Thru: Larry Brooks, Town Manager Jacquie Halbumt; Asst. Town Manager John Dunn, Town Attorney From: Patty McKenny, Town Clerk Date: April 1, 2005 Re: Second Reading and Public Hearing on Ordinance No. 05-01, Modification of Licensed Premises & Undue Concentration Licenses Summary: Attached is John's memo from first reading and a copy of Ordinance No. 05-01 for second reading & public hearing. This ordinance addresses modification of premises and undue concentration licenses. Background: This legislation was requested by the Liquor Board to try to address any requests made by license holders for the expansion/modification of licensed premises. John Dunn also addressed the "undue concentration" issue as outlined in the State Liquor Code. Discussion: This discussion only addresses the modification of premises issue. Attached is a Fee Schedule from the State of Colorado Liquor Enforcement Division. Both local & state fees related to liquor. licensing are outlined. The proposed ordinance includes a fee of $500 for the application of a modification of premises. This fee is consistent with the $500 assessed for a change of ownership or change in location in Avon's code and the State fees for those related applications. It is. not consistent with the State's fee schedule for the modification of premises application, which reflects a State fee of $150 and no fee for the local authority. After some discussion with John Dunn, it is thought that the $500 is excessive for this type of application and the Town should assess the. same fee as that of the State of Colorado, based on the philosophy that the Town should recover some of the costs involved in reviewing and setting a public hearing on these type of applications, i.e. public notice requirements. Financial Implications: There are both state & local fees associated with liquor licensing applications. Town Manager Comments: 0~01n 9 -From A D ~0 YMs MUM MOW regcd-e1 7haoovc 3to - `sue Attachments: v ✓ State of Colorado Liquor Licensing Fee Schedule ✓ Memo & attachments submitted by Town attorney at First Reading ✓ Proposed Ordinance ~ MPAA0 ~_Lvlt ill~ Er& Schedule Effective January 1, 2005 State Administrative andLegal Fees Subpoena Testimony - $200.00 for first 4 hours of appearance or on-call or travel time to court and mileage, meals, and lodging at state employee per-diem rates. Actual hourly rate for all hours in excess of four (4). Copy Cost - $1.25 per page. License Type and Fees Located In Local Fee. State Fee Application Fee for New license City or County $500.00 $825.00 Application fee for New License with City or County $500.00 $925.00 Concurrent review Application fee Transfer of Ownership City or County $500.00 $825.00 Application for Transfer of ownership City or County $500.00 $925.00 with Concurrent review Art License city or County $41.25. $308.75 Beer & Wine License City $48.75 $351.25 Beer & Wine License County $63.75 $436.25 Brew-Pub License City or County $75.00 $750.00 Club License City.or County $41.25 $308.75 Hotel.& Restaurant License City or County $75.00 $500.00 Hotel & Restaurant License with City or County $75.00 $500.00 optional premises Liquor licensed Drugstore City $22.50 $227.50 Liquor licensed Drugstore County $37.50 .$312.50 Optional Premises License City or County $75.00 $500.00 Racetrack License City or County $75.00 $500.00 Resort Complex License City or County $75.00. $500.00 Retail Gaming Tavern License City or County .$75.00, $500.00 Retail Liquor Store License City $22.50 $227.50 Retail Liquor Store License County $37.50 $312.50 Tavern License City or County $75.00 $500.00 Related Fees and Permits Located In Local Fee State Fee Addition of related facility Permits to City or County $0 $75.00 existing Resort Complex License (each) - Annual Renewal application fee City or County $50.00 $0 Bed & Breakfast Permits City or County $25.00 $50.00 Branch Warehouse or Warehouse City or County $0 $100.00 Storage Permit Related Fees and Permits Located In Local Fee State Fee Change of Location City or County $500.00 $150.00 Change of Trade name/ City or County $0 $50.00 Corporate name L Related Fees and Permits Located In Local Fee State Fee Corp/LLC Change (per person) City or County $100.00 $100.00 may be charged for background investigation by local OR state (not both) non Master File only Delivery. Permit - Liquor Store or City or County $0 $0 3.2% On & Off Duplicate License City or County $0 $50.00 Expansion-add Optional Premises City or County $0 $100.00 to existing Hotel and Restaurant Hotel/Tavern Manager's Registration City or County $75.00 $75.00 Late Renewal Application Fee City or County $500.00 $0 Master file-State issued City or County $0 $25.00 per location (Max. $1000.00 and $250.00 per person) . Mini Bar Permit (No OAP contribution) City or County $325.00 $0 with Hotel/Restaurant license Modification of Premises City or County $0 $150.00 Retail Warehouse Storage Permit City or County $0 $100.00 Special Events Permit (Liquor) City or County $25.00 $25.00 Special Events Permit (3.2%) City or County $10.00 $10.00 Temporary Permit City or County $100.00 $0 Out-of-State Shipping Per mit Ctiy or County $0 $50.00 (Wine Shipment Permit) 3.2% Beer Licensee Fees Located In Local Fee State Fee Retail 3.2% Beer On Premises City. $3.75 $96.25 . Retail 3.2% Beer On Premises County $7.50 $117.50 Retail 3.2% Beer Off Premises City $3.75 $96.25 Retail 3.2% Beer Off Premises County $7.50 $117.50 Retail 3.2% Beer On/Off Premises City $3.75 $96.25 Retail 3.2% Beer On/Off Premises County $7.50. $117.50 MEMORANDUM TO: TOWN COUNCIL ACTING AS THE LIQUOR. LICENSING AUTHORITY FROM: TOWN ATTORNEY RE: RULES GOVERNING NEW LICENSES AND MODIFICATION OF PREMISES DATE: March 14, 2005 At the hearing on the application of VHF, LLC dba Fine Wines of Vail Valley, two issues were raised. The first issue was the question whether a future expansion of the premises would require a public hearing and a new determination of requirements of the neighborhood and desires of the inhabitants. You were advised that a Department of Revenue regulation requires a reassessment of those'issues but that the Town's liquor licensing ordinance has no similar provision and no requirement of a public hearing. Based on that information, you directed that the licensing ordinance be amended to add both. The second issue was the relationship of the requirement of the statute. that the requirements of the neighborhood be determined with the statute defining an undue concentration of licenses to be a situation requiring the use of additional law enforcement resources. While no direction was given, I did review.the applicable Department of Revenue regulation and concluded it would be advisable to incorporate the regulation into the Town's ordinance to the extent it is applicable. . An ordinance doing both is on the Council agenda. I have also included with this memorandum a copy of the ordinance showing the changes, as well as copies of the two Department of Revenue regulations. Sections 1 and 4 of the ordinance include applications for modification of existing premises as applications requiring a public hearing, and Section 4 requires consideration of requirements of the neighborhood and desires of the inhabitants. Section 2 is an attempt to distill the Department of Revenue regulation on undue concentration and make it specifically applicable to the Town of Avon. As you can see, the amendment allows you (but does not require you) to compare the ratio of licenses to population in the Town and in the county. JWD:ipse Colorado Department of Revenue Page! of -2 Search This Site Regulation 47-302. Changing, Altering, or Modifying Licensed Premises. ;ale A Aft . er issuance of a license, the licensee shall make no physical change, alteration or modification of the licensed premises which materially or Main Gategories substantially alters the licensed premises or the usage of the licensed premises Brand Registration from the plans and specifications submitted at the time of obtaining the original Bringing Liquor Stock in license without the prior written consent of the local and state licensing Colorado authorities. For purposes of this regulation, physical changes, alterations or Enforcement Summaries modifications of the licensed premises, or in the usage of the premises requiring Master File Licenses prior written consent, shall include, but not be limited to, the following: Office Locations Opinions and Position 1. Any increase or decrease in the total size or capacity of the licensed Statements premises. Responsible Vendors T 2. The sealing off, creation of or relocation of a common entryway doorwa obacco Enforcement Program , y, passage or other such means of public ingress and/or egress, when such Online Services common entryway, doorway or passage alters or changes the sale or distribution of alcohol beverages within the licensed premises.. Alcohol/Tobacco Tax & Trade Bureau 3. Any substantial or material enlargement of a bar, or relocation of a bar or Fee Schedule , addition of a separate bar. Forms Laws and Rules 4. Any material change in the interior of the premises that would affect the basic Licenses and Permits character of the premises or the physical structure that existed in the plan on Other Related Links file with the latest prior application. The foregoing shall not apply to painting and Publications & Info redecorating of premises; the installation or replacement of electric fixtures or Pamphlets equipment; the lowering of ceiling; the installation and replacement of floor Statistics coverings; the replacement of furniture and equipment, and other similar Quick Links changes, nor to any non structural remodeling of a fermented malt beverage Government Services licensee's premises where the remodel does not expand the existing area designed for the display or sale of fermented malt beverage products. Internal Revenue Service Labor and Employment B. In making its decision with respect to any proposed changes, alterations or Local Governments modifications, the licensing authority must consider whether the premises, as Property and Taxation changed, altered or modified, will meet all of the pertinent requirements of the Secretary of State Colorado Liquor or Beer codes and the Regulations promulgated thereunder. Factors to be taken into account by the licensing authority include, by way of State Telephone Directory illustration but not limited to, the following: • Printer-Friendly Version 1. The reasonable requirements of the neighborhood and the desires of the • Text-Friendly Version adult inhabitants. 2. The possession, by the licensee, of the changed premises by ownership, lease, rental or other arrangement. hap/www. revenue.state.co.us/liquor_dir/wrap.asp?incl=colregcode/47302 3/1?/2005 'Clola `a o Division of e_iquior T obacco Enforceme David F. Dechant, Senior. Director Matt D. Cook, Division Director About Us.... Services.... Sections.... i. Colorado Department of Revenue Page 2 of 2 3. Compliance with the applicable zoning laws of the' municipality, city and county or county. 4. Compliance with the distance prohibition in regard to any public or parochial school or the principal campus of any college, university, or seminary. 5. The legislative declaration that the Colorado Liquor and Beer Codes are an exercise of the police powers of the state for the protection of the economic and social welfare and the health, peace, and morals of the people of this state. C. If permission to change, alter or modify the licensed premises is denied, the licensing authority shall give notice in writing and shall state grounds upon which the application was denied. The licensee shall be entitled to a hearing on the denial if a request in writing is made to the licensing authority within fifteen days after the date of notice. D. This regulation shall not be applicable to the holder of a manufacturer's license as specifically defined in C.R.S. 12-47-402. 1 { David F. Dechant, Senior Director Department Home • Division Home ,r, ...'u (iC:;. Guluiz. iu Departr r=n1 F<r..,+ ,i Matt D. Cook, Division Director Top • State Home • Federal Home • Contact Us http:i/ww•w.revenue.state.co.us/liquor_dir/wrap.asp?incl=colregcode/47302 .7711. . .3/12,1-005 j' Colorado Department of Revenue Search This Sit., C0nlci Main Categories Brand Registration Bringing Liquor Stock in Colorado Enforcement Summaries Master File Licenses Office Locations Opinions and Position Statements Responsible Vendors Tobacco Enforcement Program Online Services Aicohol,'Tobacco Tax & Trade Bureau Fee Schedule Forms Laws and Rules Licenses and Permits Other Related Links Publications & Into Pamphlets Statistics Li l cii Li nKE'. Government Services Internal Revenue Service Labor and Employment Local Governments Regulation 47-301. Undue Concenteation of licenses. Page 1 of 2 A. For purposes of determining if the issuance of a new tavern or retail liquor store license would result in or add to an undue concentration of the same class of license and, as a result, require the use of additional law enforcement resources, the state or local licensing authority may consider factors, including, but not limited to: 1. Whether the ratio of the number of tavern or retail liquor store licenses within the county's of the neighborhood to be served where application has been made to the county's population exceeds the ratio of the statewide number of licenses of the same class to the state population; 2. Whether the ratio of the number of tavern or retail liquor store licenses within the census tract or census division in the neighborhood in which the applicant premises are located to the population of the census tract or division exceeds the ratio of number of licenses of the same class in the county or municipality to the population of the county or municipality where application has been made; 3. The distance between the applicant premises and the premises of other holders of the same class of license; 4. Published data concerning the concentration of tavern or retail liquor store licenses and its effect on the need for law enforcement resources; and 5. Testimony concerning the use of law enforcement resources by law enforcement officials with the responsibility for enforcing state or local law in the area in which the applicant premises are located. B. For purposes of this regulation: 1. The number of tavern and retail liquor store licenses within a given area shall be as published by the state licensing authority; . Property and Taxation 2. The population shall be the estimate published by the most recent United Secretary of State States decennial or special census (for state, census tract and census division State Telephone Directory , data) or the most recent estimates published by the Department of Local Affairs (for county and municipal data). • Printer-Friendly Version • Text-Friendly Version 3. "Neighborhood" shall be that area as required pursuant to 12-47-312(2)(a) C.R.S. http://www.reventie.state.co.u s/ liquot•_dir!wrap.asp?incl=colrcgcode/47301 3/1.2/2005 'fir ceraea,4. David F. Dechant, Senior Director Matt D. Cook, Division Director About Us.... Services.... Sections.... a ORDINANCE NO.05_ _ AN. ORDINANCE AMENDING CHAPTER 5.08, MUNICIPAL CODE OF THE TOWN. OF AVON, AS IT RELATES TO THE MODIFICATION OF LICENSED PREMISES AND'UNDUE CONCENTRATION OF LICENSES BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Amendment. Subsection (b) of Section 5.08.070, Chapter 5.08 of Title 5,- Avon Municipal Code, is amended to provide as follows: (b) The burden of proof in an application for'. a new license, for the modification of licensed premises or for the transfer. of an existing license shall be upon the applicant. The burden of proof in any proceeding to revoke or suspend a license shall be upon the Town or the party seeking revocation or suspension. In a renewal hearing there shall ;be no presumption or burden of proof, unless and until such time as some unfavorable testimony or exhibit is received, at which point the burden shall become that of the licensee to demonstrate by a preponderance of the evidence that the license should be renewed. Meetings and hearings of the Local Licensing Authority may be adjourned or continued to such other times as may be suitable and reasonably convenient for the parties involved. Section 2. Amendment. Section 5.08.130, Chapter 5.08 of Title 5, Avon Municipal Code, is amended by the addition of a new Subsection (c) to provide as follows: (c) For purpose of determining if the issuance of a new tavern or retail. liquor store license would result in or add to an undue concentration of the same class of license and, as a result, require the use of additional law enforcement resources, the Local Liquor Licensing Authority may consider factors including but not limited to: . (1) The ratio of the number of tavern or retail liquor store licenses in the Town of Avon to the population of the Town of Avon compared to the ratio of the number of tavern or retail liquor store licenses in Eagle County to the population of Eagle Count (2) The distance between the premises of the applicant and the premises of other holders of the same class of license. (3) Published,data concerning the concentration of tavern or liquor store licenses and its effect on the need for law enforcement resources; and (4) Testimony concerniniz the use of law enforcement resources by law enforcement officials with the responsibility for law enforcement in the Town of Avon. Section 3. Amendment. Subsections (c) and (d) of Section 5:08.130, Chapter 5.08 of Title 5, Avon Municipal Code, are relettered to be Subsections (d) and (e). Section 4. Amendment. Section 5.08.150, Chapter 5.08 of Title 5, Avon Municipal Code, is renamed Modification of licensed premises and changes in location, ownership or manager and Subsection (a) is amended to provide as follows: (a) To achieve a modification of licensed premises or a change in the location of a licensed outlet, the applicant shall submit all forms and material required by the State Liquor Enforcement Division, a fee to the Town of five hundred dollars ($500.00) for actual and necessary expenses incurred in connection with processing the application, and any additional materials as reasonably required by the Town Attorney, Town Clerk or Police Chief, as well as any information, testimony or documents required by the Local Liquor Licensing Authority. In making its decision with respect to a modification of licensed premises or a change in the location of a licensed outlet the Local Liquor Licensing Authority shall take into consideration the reasonable requirements of the neighborhood and the desires of adult inhabitants . INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED the 22nd day of March, 2005, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on the 12th day of April, 2005, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk