ZONING AND CONCURRENT SALES OF
MOTOR VEHICLE FUEL WITH BEER/WINE
(Excerpts from the Business and Professions Code)
23790. No retail license shall be issued for any premises which are
located in any territory where the exercise of the
rights and privileges conferred by the license is contrary to a valid zoning
ordinance of any county or city.
Premises which had been used in the exercise of those rights and privileges
at a time prior to the effective date of
the zoning ordinance may continue operation under the following conditions:
(a) The premises retain the same type of retail liquor license within a
license classification.
(b) The licensed premises are operated continuously without substantial
change in mode or character of
operation.
For purposes of this subdivision, a break in continuous operation does not
include:
(1) A closure for not more than 30 days for purposes of repair, if that
repair does not change the nature of the
licensed premises and does not increase the square footage of the business
used for the sale of alcoholic
beverages.
(2) The closure for restoration of premises rendered totally or partially
inaccessible by an act of God or a toxic
accident, if the restoration does not increase the square footage of the
business used for the sale of alcoholic
beverages.
(Added by Stats. 1953, Ch. 152; Amended by Stats. 1982, Ch. 474; Amended
by Stats. 1989, Ch. 95.)
23790.5. (a) It is the intent of the Legislature in enacting this
section to ensure that local government shall not be
preempted in the valid exercise of its land use authority pursuant to Section
23790, including, but not limited to,
enacting an ordinance requiring a conditional use permit. It is also the
intent of the Legislature to prevent the
legislated prohibition of the concurrent retailing of beer and wine for
off-premises consumption and motor vehicle
fuel where the retailing of each is otherwise allowable.
(b) (1) No city, county, or city and county shall, by ordinance or resolution
adopted on or after January 1, 1988,
legislatively prohibit the concurrent retailing of motor vehicle fuel and
beer and wine for off-sale consumption in
zoning districts where the zoning ordinance allows motor vehicle fuel and
off-sale beer and wine to be retailed on
separate sites.
(2) On and after January 1, 1989, no city, county, or city and county ordinance
or resolution adopted prior to
May 5, 1987, shall have legal effect if it legislatively prohibits the concurrent
retailing of motor vehicle fuel with
beer and wine for off-sale consumption in zoning districts where the zoning
ordinance allows beer and wine and
motor vehicle fuel to be retailed on separate sites.
(3) On and after July 1, 1988, no city, county, or city and county ordinance
or resolution adopted on or after
May 5, 1987, shall have legal effect if it legislatively prohibits the concurrent
retailing of motor vehicle fuel with
beer and wine for off-sale consumption in zoning districts where the zoning
ordinance allows beer and wine and
motor vehicle fuel to be retailed on separate sites.
(4) This section shall not apply to a prohibition by a city, county, or
city and county of the sale of beer and wine
in conjunction with the sale of motor vehicle fuel if that prohibition occurs
as a result of the prohibition of the
combining of the sale of motor vehicle fuel with a broader class of products
or uses which includes alcoholic
beverages or beer and wine as a named or unnamed part of that larger class,
if that prohibition was enacted before
August 1, 1985.
(c) Subject to the restrictions and limitations of subdivision (b), this
section shall not prevent a city, county, or
city and county from denying permission, or granting conditional permission,
to an individual applicant to engage
in the concurrent retailing of motor vehicle fuel with beer and wine for
off-premises consumption pursuant to a
valid conditional use permit ordinance based on appropriate health, safety,
or general welfare standards contained
in the ordinance if that conditional use permit ordinance contains all of
the following:
(1) A requirement for written findings.(2) A provision for an administrative appeal if the governing body has delegated
its power to issue or deny a
conditional use permit.
(3) Procedures for notice of a hearing, conduct of a hearing, and an opportunity
for all parties to present
testimony.
(4) A requirement that the findings be based on substantial evidence in
view of the whole record to justify the
ultimate decision.
(d) Notwithstanding any other provision of law, establishments engaged in
the concurrent sale of motor vehicle fuel with beer and wine for off-premises consumption shall, until January
1, 1994, abide by the following
conditions:
(1) No beer or wine shall be displayed within five feet of the cash register
or the front door unless it is in a
permanently affixed cooler as of January 1, 1988.
(2) No advertisement of alcoholic beverages shall be displayed at motor
fuel islands.
(3) No sale of alcoholic beverages shall be made from a drive-in window.
(4) No display or sale of beer or wine shall be made from an ice tub.
(5) No beer or wine advertising shall be located on motor fuel islands and
no self-illuminated advertising for
beer or wine shall be located on buildings or windows.
(6) Employees on duty between the hours of 10 p.m. and 2 a.m. shall be at
least 21 years of age to sell beer and
wine.
The standards contained in this subdivision are minimum state standards
which do not limit local regulation
otherwise permitted under this section.
(e) Until January 1, 1994, if there is a finding that a licensee or his
or her employee has sold any alcoholic
beverages to a minor at an establishment engaged in the concurrent sale
of motor vehicle fuel with beer and wine
for off-premises consumption, the alcoholic beverage license at the establishment
shall be suspended for a
minimum period of 72 hours. For purposes of Section 23790, the effect of
such a license suspension shall not
constitute a break in the continuous operation of the establishment nor
a substantial change in the mode or
character of operation.
(f) The provisions of this section apply to charter cities.
(Added by Stats. 1987, Ch. 176; Amended by Stats. 1991, Ch. 108. Effective
July 11, 1991.
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