[bouldercouncilhotline] Hotline: Response to City Council questions from Oct. 15th public hearing

[cmosupport at bouldercolorado.gov]

Sender: Guiler, Karl



Dear City Council members,
 
Below are responses to questions posed by City Council at the  Oct. 15, 2013 City Council meeting regarding regulatory changes to hospitality establishments, the 500-foot rule and restricting of the BLA from last Tuesday’s public hearing.
 
Best,
 
Karl
 
 

1.     
If the 500-foot rule were changed to Beer and Wine license only along with the recommended land use code changes, provide examples of establishments that would be prohibited
 or would need to change their operational characteristics or restrict the type of liquor they can serve.
All establishments that hold liquor licenses on University Hill would be grandfathered and could continue to
 use their Hotel-Restaurant liquor licenses (e.g., permits sale of all types of alcohol). This is because the vast majority of the businesses have Hotel-Restaurant liquor licenses as a result of the 500-foot rule which only permitted Hotel-Restaurant liquor
 licenses (some other grandfathered licenses on the Hill are a tavern license at the Fox Theatre, 3.2% only for Everyday Market and 7-11, and a Retail liquor store license for Rose Liquors). These establishments would not have to change their operational characteristics
 as long they adhere to their previous approvals or past business practices in the absence of previous approvals. The new regulations, if adopted, would only apply to new businesses or businesses that opt to change their operating characteristic such that it
 is considered an expansion of the use (e.g., enlarging their size, operating later hours than approved etc.).
 
The following link shows what liquor licenses have been granted city wide:
http://gisweb.ci.boulder.co.us/website/pds/PDS_LIQUOR_LICENSES/viewer.htm
 

2.     
What about along East and West Pearl?
The greatest level of impact on existing establishments as a result of the new regulations would occur on University Hill and other properties proximate to the University of
 Colorado as they would be impacted by the 500-foot rule, which limits liquor license choice. As East and West Pearl are not impacted by the 500-foot rule, the full range of liquor licenses could be requested for these areas as they are today.

>From a zoning standpoint, all of the establishments that operate in East and West Pearl would be possible under the new regulations albeit with the changes enumerated below:
 

·        
Hospitality establishments currently considered by-right (no review required) would change to conditional uses (staff level review with no call up). Like East Pearl zoning (DT-2),
 all hospitality establishments would require neighborhood meetings and management plans in these zones and similar zones (BMS, MU, DT-1, DT-2, and DT-3). (A zoning map is provided at the end of this message for reference).

·        
Taverns and Brewpubs, which would most likely require Use Review today to permit operation after 11pm, would automatically require Use Review.

·        
The biggest change would be that
new establishments that would fall under the new “restaurant” definition would require closure at 11pm. If a restaurant wanted to operate after 11pm, they would be classified a “late night restaurant” and would not be permitted to hold a liquor license.
 Alternatively, a business could opt to be classified as a “neighborhood pub or bistro” which would be permitted to operate as a conditional use until 12am and hold a beer and wine license OR request Use Review approval to operate as a “Tavern” or “Brewpub.”
 These changes are intended to avoid the problem with establishments morphing. If an establishment intends to become a drinking establishment in late hours, it would be more appropriate for it to be considered a tavern or brewpub rather than representing itself
 as a standard sit-down restaurant.
As discussed above, existing establishments along East and West Pearl would become grandfathered if they did not fully comply with the new regulations unless their operation ceased
 for more than one year or if they decide to change their operational characteristics. As stated above,
all of the establishments that exist on East and West Pearl would be possible under the proposed changes, what is different is the process they would have gone through to operate and also what type of liquor license an establishment would choose under
 the new regulations. 
 
The choice of liquor license is important in distinguishing how an establishment intends to operate. The choice would be whether they would operate primarily as a restaurant (required
 closure at 11pm with hotel-restaurant license) or more of a drinking establishment (Tavern license). This is difficult under today regs as the vast majority of establishments on the Hill and on East and West Pearl operate with Hotel-Restaurant liquor license
 and may operate like both restaurants and taverns at different times of day. Hotel-Restaurant licenses permit sale of all types of alcohol with a minimum 25% food percentage, which is quite flexible, but lends to the morphing issue. Dependent on late night
 service and food percentage, all of the establishments along East and West Pearl would likely fall into different ranges as to whether they are restaurants or taverns under the proposed changes.
 
It is important to note that this higher level of scrutiny on businesses is only proposed for areas that are termed “interface” areas (i.e., BMS, MU, DT-1, DT-2 and DT-3 zones) and
 uses that are in the core of business areas further from residential zones (i.e., DT-4, DT-5, BR and BC zones) would not require closure at 11pm, would not require Use Review and would not require neighborhood meetings or management plans. The biggest change
 for these areas would be that the uses would become conditional (staff level review with no call up) where they are currently by-right.
 
3.   Provide the rationale that led to the creation of the Neighborhood Pub or Bistro use.
The idea for the neighborhood pub or bistro use came from comments from the community that regulations should encourage well run responsible establishments that may operate late. To
 that same point, direction from the City Council in 2009 also informed the creation of the use as highlighted below:
 

·                    
Recognize distinctions between high risk and low risk types of licensed alcohol establishments;

·                    
Avoid locating high risk types of licensed establishments near residential neighborhoods, the university and within mixed use developments;

·                    
Minimize external impacts of high risk type licensed establishments; restrict high risk uses to defined areas where their impacts can be contained, and education, enforcement and policing efforts
 coordinated (i.e.,  the “Concentration” policy model);

·                    
Allow for congenial places for people to socialize that add vitality to existing and planned centers in the community.
 
The Hungry Toad is often cited as a place that is a congenial place for people to socialize and it is elements of that use that informed the creation of “Neighborhood Pub or Bistros.”
 Staff attempted to create a use that would provide a hybrid between a restaurant and a tavern. As community concerns have been raised about access to hard alcohol (which allows for quicker intoxication), staff felt that a use limited to a beer and wine license
 and one which emphasized food (40% minimum food requirement) could be an appropriate use as compared to late night restaurants that may serve hard alcohol etc. In efforts to incentivize such establishments and also with an eye towards maintaining late night
 options with economic vitality in mind, staff proposed that such establishments could remain open until 12am to make it more attractive to prospective operators. Bistros are typically defined as small establishments that emphasize food and wine service.
 
4.   Are liquor licenses transferrable?

Liquor licenses are transferrable so long as the use does not expire. Expiration constitutes one year of closure. If a use were to be grandfathered and opted to expand, it would be
 subject to the new zoning regulations (and changes to the 500-foot rule, if applicable). This, in turn, may require a change in liquor license type to be consistent with the new definitions.
5.   Clarify the issue of BLA imposing conditions on drink service vs. assertions that BLA does not have the authority to control drink specials.

In an effort to clarify statements that were made during public comment.  It is true that the BLA does not have the authority to regulate drink specials.  However, in its renewal hearing
 last year, K’s China proposed a stipulation that included renewal with several conditions; one of which addressed drink specials.  The BLA modified some of those conditions and added some additional to the list but the original proposed conditions came from
 K’s China.  Pursuant to CRS 12-47-103(9), the authority has discretion to impose conditions on a license and in this particular case the licensee self-imposed the conditions regarding drink specials.
 
6.   
The following reads like it was drafted incorrectly –(from page 240 of the packet):
Three options for the existing 500-ft rule are briefly described below:
Any changes to the 500-ft rule would only apply to new businesses. Existing businesses would be grandfathered, unless a business was closed for more than one year,
and a business could 
also transfer their liquor licenses to future owners or tenants.

 
Question: Should the “and” be an “or?” Sentence reads funny. Please clarify.
Any changes to the 500-foot rule would only apply to new
liquor licenses.  Existing licenses would be grandfathered and they would have the opportunity to transfer their grandfathered liquor license to future establishments in the same location.  However, existing liquor licenses could lose their grandfather
 status if they lose their license due to liquor law violations in the form of revocation, non-renewal, etc. by the BLA OR if a business were to expand making them to subject to new zoning rules that may require a different liquor license type to be consistent
 with applicable definition for the type of establishment.
 
7.     How will this impact the Boulder Junction area? Will this create new interface zones that will in turn create neighborhood issues?
Restaurants and taverns would be regulated similar to the way they are today. Effectively, taverns would require Use Review (as they would today if operating after 11pm) and restaurants
 would require Use Review if greater than 1,500 square feet in the MU-4 zone. MU-4 is considered an “interface” zone near residential and therefore, has similar requirements as BMS, DT-1, DT-2 and DT-3 and the other MU zones, where neighborhood meetings and
 management plans would be required.  In the high density residential zones, restaurants would be possible through Use Review so long as they are no larger than 1,500 square feet. (A zoning map is provided at the end of this message for reference).
 
8.   Confirm the accuracy of Mark Heinritz’s report of historic shrinking of hospitality occupancy on University Hill.
Staff has reviewed the data provided by Mark Heinritz relative to liquor licenses and business intensity on the Hill. Mr. Heinritz’s numbers and conclusions state that while the number
 of liquor licenses has increased on the Hill from 13 in 1997 (staff has record of 14 in ’97) to 19 in 2013, the intensity of businesses - particularly at time of closing - has not increased. The data indicates that there is an occupancy maximum of roughly
 2,000 persons on the Hill. Hill establishments have indicated that they were usually at capacity in the 1990’s at time of close whereas today’s observations indicate a lower number of patrons at time of close.  This is most likely due to the rise of downtown
 as a destination restaurant / entertainment district. Staff does not necessarily disagree with these observations, but notes that after conferring with the Fire Marshall, the maximum occupancy of all establishments on the Hill is closer to 1,500 persons. Further,
 it is difficult to substantiate the observations of different establishments at time of
close since the data is qualitative. Staff agrees that there is a lower overall intensity on the Hill compared to previous years however, occupancies may ebb and flow over time and may peak during certain events (graduation,
 CU games, particular concerts at the Fox). Essentially, the possibility of a high number of patrons at closing is still possibility on the Hill as it was in the past.
 
 
Zoning on around University Hill

 
Zoning in and around downtown Boulder

 
 
Karl Guiler, AICP
Planner II/Code Amendment Specialist
City of Boulder Department of Community Planning & Sustainability
Planning & Development Services Center
1739 Broadway, 3rd Floor
Boulder, CO  80306-0791
 
Phone: 303.441.4236
Fax: 303.441.3241
Email: guilerk at bouldercolorado.gov
 
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