Torchy's Tacos on South Congress can't sell alcohol, city council says

AUSTIN, Texas - Austin City Council has denied a request from Torchy's Tacos on South Congress to waive a distance requirement that doesn't allow them to serve alcohol if they're within 300 feet of a school. 

The business is diagonally across from Lively Middle School. 

Some parents opposed the request.

"I'm asking you to keep additional alcohol sales away from the school and away from Torchy's. It's uniquely positioned to be especially impactful to the students at Lively because they have outdoor seating and an outdoor bar that is literally in the direct line of sight of students," Gretchen Otto said during public comment at the City Council meeting. 

PREVIOUS COVERAGE: Torchy's Tacos on South Congress wants to serve alcohol; asks permission from city

This isn't the first time Torchy's has applied. They pulled their waiver request in 2016 after hearing neighborhood concerns.

With this application, Torchy's suggested no alcohol sales while school is in session or during after-school activities. 

"If not granted a waiver, Torchy's will have to explore other alternatives. A likely alternative is Torchy's becoming a bring your own beverage establishment," Jessica Kirker, VP of Legal for Torchy's Tacos said during the meeting. 

That would mean no restrictions on when alcohol is there. 

Torchy's also says they need the revenue due to rising costs on South Congress. 

"If Torchy's cannot justify the expense to operate, the location will have to be closed," Kirker said.

Mayor Kirk Watson had some questions during the meeting. "So you threaten to either close or turn it into the wild, wild west of BYOB?" he asked.

"No threat, sir," Kirker said. 

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Torchy's points to other nearby businesses that either sell alcohol or do alcohol giveaways, something they've also considered. 

"If I can't afford to be someplace because I'm not selling enough food, how does it help me to give away alcohol?" Watson said. 

"The tourist population as well as the local population that comes down to South Congress..." Kirker said.

"...it'll incentivize them to come eat your tacos," Watson said. "Correct," Kirker said. 

The city's legal office also answered some questions about other businesses.

"How would they be allowed to sell beer and wine when Torchy's is not?" Council Member Chito Vela asked.

"They would've had a license before or council would've granted a waiver," the attorney said.

They also say the city code for BYOB doesn't apply to restaurants. 

"If there's not city code, then they're not regulated by TABC, then they will be unregulated, they will have the exception, that loophole that you're concerned about," the city's legal team said.

Torchy's Tacos released the following statement after the denial:

"Torchy’s Tacos is very disappointed in Austin City Council’s decision to not approve a waiver that would have allowed alcohol sales at our South Congress location. Alcohol sales, including to-go, are allowed at the other restaurants and bars on South Congress.

"Torchy’s worked closely with community members to hear their concerns over the last 8 years and thoughtfully proposed a solution to address them. The proposal included limiting alcohol sales on weekdays to be fully outside of school hours, including buffer time to account for after-school activities, and sales on the weekends only.

"Unfortunately, despite these many efforts, the Council did not grant our request today.

"Since renovating and moving into the iconic space that was once the home to legendary Fran’s Hamburgers, we have been honored to be part of this community and have always strived to provide a family-friendly environment, just like all our other locations, while listening to our neighbors’ concerns.

"When Torchy’s first opened the South Congress location in 2016, our original alcohol waiver request was withdrawn based on concerns raised by the community. With this waiver submission, we carefully considered those concerns and resubmitted a plan that incorporated safety measures, which were ignored and not addressed within the City Council meeting today.

"Over the last few years, we have seen many legendary retail stores, restaurants, and music venues permanently close only to be later re-opened by high-end fashion brands, national chain restaurants or torn down to make way for other construction and development. Our hope was that, in being granted this waiver, we could secure our placement on South Congress for many more years to come. We are proud to be an Austin-born company and will always support our community.

"While we are disappointed, Torchy’s is committed to finding alternative ways to deliver the best Torchy’s experience possible for our guests at South Congress and will explore options that prioritize the community and its visitors. Thank you to our supporters and everyone who engaged in thoughtful dialogue with us during this process. We look forward to continuing to serve Damn Good food and being a responsible partner in this vibrant neighborhood.

Wheatsville Food Co-op on South Lamar, which is near Ann Richards School, has also requested a distance waiver to sell alcohol. That hearing has been postponed to Oct. 24.