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Alcohol waiver approved, policy review promised

Monday, June 22, 2015 by Sunny Sone

City Council approved an alcohol waiver for a planned Tiny Boxwoods restaurant on 35th Street at its meeting Thursday but not without giving the subject serious scrutiny and planning a discussion on Council’s larger policy in committee.

Council approved the waiver 10-1, with Council Member Ora Houston opposing.

The restaurant, which will serve only beer and wine, is located within 211 feet of Bryker Elementary School on 35th Street. Austin requires any venue planning to sell alcohol within 300 feet of a public or private school to apply for a waiver.

Michele Lynch of Metcalfe Wolff Stuart & Williams, LLP represented Tiny Boxwoods. Shannon Dyer Dowell, the applicant for the waiver, She argued that the issuance was not precedent-setting and that the restaurant’s model is family-friendly. She also said that while the measurement between the school and restaurant is less than 300 feet “as the crow flies,” the practical walking distance from door to door is 783 feet.

Council discussion around the waiver centered, in large part, on Council Member Sheri Gallo’s attempt to cap the restaurant’s alcohol sales at 20 percent. Dowell Lynch said other Tiny Boxwoods restaurants historically never make more than 20 percent of their sales from alcohol.

“I am comfortable with this based on the fact that it is being presented as a family-friendly restaurant in which alcohol sales are not a vast portion of the sales,” Gallo said.

Gallo withdrew the amendment after learning from Law Department staff that the city would not be able to enforce such a restriction. The city can issue a waiver for alcohol sales, staff reported, but permits to sell alcohol come from the Texas Alcoholic Beverage Commission. If the city were to cap alcohol sales at 20 percent through another legal avenue, Austin Code would still not have the means to enforce it, Council members Leslie Pool and Delia Garza pointed out.

The permit issued to Tiny Boxwoods does require a cap of 49 percent. If the restaurant crosses that threshold, it would need a different permit from TABC and a new land-use designation from the city.

The restaurant received support from the Brykerwoods Neighborhood Association, and Mayor Pro Tem Kathie Tovo said the school’s parent-teacher association had expressed support. The Austin Independent School District stood in opposition because of the district’s blanket policy toward alcohol sales near schools.

“I felt pretty comfortable that this is a model I can support in that location and that I can support an alcohol waiver for that location,” Tovo said. “I would say that’s in part, after looking through the literature and learning more about it, (because) it does appear to be a family-friendly establishment and one that doesn’t feature alcohol as a primary focus of activity there.”

Council agreed to open a larger policy discussion in committee and consider an alcohol sales cap there.

Image courtesy of the city of Austin.

This story has been corrected.

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