What a Distance Variance Is, and When a Business Can Request One

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A distance variance is permission from a city or county to locate an alcohol business closer to a church, school, or public hospital than that government’s own distance rule allows. Only the government that adopted the rule can grant one: the city’s governing body inside city limits, or the county commissioners court in unincorporated areas. The Alcoholic Beverage Code lists the findings that support a variance, and the decision is discretionary.

Where the power comes from

Section 109.33(e) of the Alcoholic Beverage Code says that a commissioners court or city governing body that has enacted a distance regulation “may also allow variances to the regulation.” A variance is available only where a local distance rule exists; if the city or county has not adopted one, there is nothing to vary.

The grounds the statute lists

A variance may be granted if the commissioners court or governing body determines, for the particular case, that enforcing the regulation:

  1. is not in the best interest of the public;
  2. constitutes waste or inefficient use of land or other resources;
  3. creates an undue hardship on an applicant for a license or permit;
  4. does not serve its intended purpose;
  5. is not effective or necessary; or
  6. should be relaxed for any other reason the court or governing board, after considering the health, safety, and welfare of the public and the equities of the situation, determines is in the best interest of the community.

Any one ground is enough, and the last is broad. The statute does not require the local government to find any of them, though; it says the body “may” allow variances.

Which body hears the request

Location of the business Body that adopted the rule Body that decides the variance
Inside an incorporated city or town city council or other governing board the same governing board
Unincorporated part of the county commissioners court the commissioners court

Section 109.33 does not prescribe a procedure. Each city and county sets its own application form, fee, notice, and hearing practice, so the first step is getting that government’s written process. A location near a city limit line needs the government that actually governs the address.

When to ask

A variance request makes sense once three facts are established:

  • the address is subject to an adopted distance rule;
  • measured by the method the Code requires, the business falls inside the prohibited distance; and
  • the business is not covered by one of the Code’s exemptions, such as the one for certain restaurants and retailers with low alcohol sales from the 1,000-foot school rules.

An applicant can first learn of the problem when the city or county declines to certify the location. A variance can also be sought before the application, once the measurement shows the location is inside the line; the local government’s procedure decides whether it will consider a request at that stage.

What a variance does and does not settle

A granted variance removes the local distance barrier for that location. It does not change the location’s wet or dry status, satisfy any other ordinance, or decide any other part of the TABC application. A denial is also a local decision: the Code gives the local body discretion, so the realistic preparation is a request that addresses the statutory grounds with facts about the site, such as the actual path to the protected institution, what lies between them, and how the business will operate.

This article is general information about Texas alcoholic beverage law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and TABC rules change; confirm current requirements with the Texas Alcoholic Beverage Commission, the relevant city or county, or a licensed Texas attorney before acting.

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