AG opinion splits the difference on small cities’ power to curb alcohol

Credit: Charlie L. Harper III

By Kimberly Reeves
TBIJ Contributor 

An Attorney General’s opinion out this week gives smaller municipalities some, but not all, the rights afforded to larger cities when it comes to limiting alcohol sales.

The opinion, of course, is not new law. It’s an interpretation of what’s already on the books in state statute; specifically, the same topic in the Texas Alcoholic Beverage Code and the Texas Education Code.

According to the opinion, issued on Wednesday, the law gives fewer rights to limit alcohol sales in general law municipalities with a population of less than 900,000.

That is not likely to sit well with the citizens of Hamilton, who asked the chair of the House Homeland Security and Public Safety Committee to seek an opinion. Hamilton is a small general law city outside Waco with a population of just under 3,000.

So long, Tuffy: TX House Licensing and Admin chair loses primary

By Charlie L. Harper III

The jovial Mike “Tuffy” Hamilton, chairman of the Texas House Licensing and Administrative Procedures Committee, has lost his Republican primary in a paired matchup in East Texas. Redistricting pitted the popular rep against relative newcomer James White, who was a freshman last year in the House and still managed to beat the veteran House chair with 55 percent of the vote.

Tuffy’s vacancy means that a new chairman will be appointed to lead the committee that is largely the stopping point for bills dealing with the Texas Alcoholic Beverage Commission. UPDATE: Speaker Joe Straus told reporters this week that he doesn’t like to shift chairs in the interim, so unless we hear otherwise, we’re assuming he hangs onto the chairmanship over the summer.

Lawyers asking for help in fight against NB can ban

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By Kimberly Reeves
TBIJ contributor

Attorneys fighting New Braunfels’ so-called “can ban” want to see the Texas alcoholic beverage industry in their camp before the next round of their fight.

When that round will occur is still at question. District Judge Scott Jenkins transferred the can ban back to Comal County this week, after dismissing the Texas Commission for Environmental Quality and General Land Office from the suit.

The move takes the decision on a temporary injunction out of the hands of Jenkins. Once the file is delivered to Comal County courts, it will be assigned to a district judge whose first job will be to consider the temporary, and permanent, injunction issue.

Attorney Jim Ewbank, who represents the plaintiffs in the case, can’t discuss how soon he expects to be back in court – fairly soon, we assume, given that tubing season is upon us – but the Austin lawyer is clear who he wants at the table when the real discussions begin in the “can ban” case.

“What we really want is to see the trade associations that are directly impacted by this case get involved,” Ewbank said. “Right now we’re talking about New Braunfels, but there’s already rumblings in San Marcos. You can expect this to spread to every little community up and down the river that wants to control traffic, control people, control the number of people on the river, what they drink and what they take.”

UPDATE: Can ban suit goes home to Comal County

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UPDATE: Judge Jenkins did indeed drop the GLO from the suit and grant the motion for a change of venue. We’ll let you know what happens on Thursday.

By Kimberly Reeves
TBIJ contributor

AUSTIN – (Wed. March 23) The beverage industry’s push to get the New Braunfels’ can ban heard in Travis County was hanging on by a thread on Wednesday after District Judge Scott Jenkins dismissed the TCEQ from the case.

Still to be decided – and the part of the case that will most immediately affect summer time tubers – is whether to issue a temporary restraining order on the can ban, which was passed last year and makes it all but impossible to drink a beer while floating down the river.

That decision won’t happen until at least Thursday. But today’s proceedings provided some decent insight into some of the twists and turns of the fight over whether to ban disposables on the Comal and Guadalupe rivers.

San Marcos votes 4-3 to ban alcohol in parks, and all but ban it on the river

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San Marcos City Council has barely passed an ordinance that would effectively can drinking on the river and absolutely ban it in public parks and on riverbanks. In spite of more than 1,000 signatures on a petition and, according to media reports, only one citizen speaking in support of it, the council voted 4-3 to accept it.

According to an article in the Austin American Statesman, councilman Jude Prather, who was the lone vote against the ban during a preliminary vote in April, wasn’t at the meeting tonight. Worth asking where he was, as a 4-4 vote would have really gummed up those works.

If I were a betting woman, I’d say the next step is likely a lawsuit – given that one is already underway against neighboring New Braunfels for an ordinance that does something very similar. We’ll be checking back with the councilman and some of the opponents to see what’s next.

Meanwhile, in case you had any doubt about what they’re going for with this ordinance, see the police chief’s quote in the Statesman article:

Police Chief Howard Williams said the alcohol ban empowers officers to take action against disorderly, drunk people who don’t meet the legal definition of public intoxication.

Merely being intoxicated and obnoxious does not make you a hazard to yourself or others,” Williams said. “Therefore, you cannot be arrested or cited for that.”

Right. That’s because IT’S NOT ILLEGAL TO BE OBNOXIOUS. If you can’t be arrested for something, it’s because it’s not illegal. No brainer, chief.

 

Booze ban: In case you wondered about their motives

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Tell us if you read anything about the environment in the following quotes:

“I believe this is the year that City Council must take some strong measures to get better control of the crowds that flock to the Comal…”

“I’m sorry there doesn’t seem to be a way to ban alcohol on the river (short of banning all containers) as I think that would take care of a lot of our problems.”

These are the words of  New Braunfels Mayor Gale Pospisil to a journalist in June 2011 in an email exchange about the disposable container ban that city passed by popular vote late last year. Against overwhelming business opposition and after years of city leaders trying to convince the public to support restrictions on what they seem to believe is their river. As recently as 2007, voters ousted City Councilman Ken Valentine for his support of river restrictions – and then, suddenly, the ordinances banning disposables on the river wins overwhelming support.

I personally interviewed Gale last summer and she said it was in no way, shape or form about restricting alcohol. Obviously, that’s not true. The email that says otherwise (linked above) was obtained under the Texas Freedom of Information Act by lawyers who are suing New Braunfels over that ordinance. Note that it’s from her personal email. (And note that the article I wrote at the time sought to put her on record as saying beer WOULD be allowed on the river.)

Educate yourself on that lawsuit – it’s actually fascinating stuff – by reading the briefs here and here.

What IS true is what the mayor says about not being able to ban alcohol on the river. Drinkers and freedom fighters everywhere, remember this: Cities can NOT ban alcohol on the river. They can NOT ban alcohol in their streets without TABC approval (lookin’ at you, Austin).

Keep this in mind as we cast our eyes on San Marcos, that raucous college town next door, and its efforts to do the same thing – as well as ban the drinking and display of alcohol in all city parks and on riverbanks.

On May 1, the San Marcos City Council is expected to take up the issue after delaying it for several weeks to do more research.  Their point is environmental and business-friendly, but an ordinance that effectively bans alcohol on the river is obviously not simply about being green.

And in case it’s not clear enough, that’s violating at the very least the spirit of the law that says Texas rivers belong to everyone and only the state can control them.

San Marcos to resume booze ban talks at May meeting

Credit: Charlie L. Harper III

San Marcos city leaders plan to continue their discussion of a proposed ban on disposables in the river, and on alcohol in its city parks and riverbanks in its meeting on May 1 – having delayed a second-reading vote on Apr. 3 in favor of more research.

It’s a wise move, that research.

Neighboring New Braunfels has a long history of trying and failing to stop that fabled, iconic Texas tradition of drinking a beer on an inner tube in the Guadalupe or Comal Rivers. That city (along with Land Commissioner Jerry Patterson) is currently in a lawsuit over its latest ban on disposable containers, as the state’s alcoholic beverage code makes it fairly clear that it can’t ban alcohol on the river and the ordinance will have that effect, intended or otherwise – but more on that later.

San Marcos was set to take its final vote on Apr. 3 – and as it had already preliminarily approved the ban by a 6-1 vote, a smart betting woman wouldn’t have lain her money down on failure for that one.

But it delayed the vote to collect public input and further look into how other cities are dealing with what they referred to as population gains. The council meets every other Tuesday. You can see their agendas here.

The May 1 agenda isn’t posted yet, but city officials tell TBJ that there’s a workshop and town hall meeting in the works between now and then to collect public input on the ordinance.

The proposal – while it doesn’t ban alcohol – will effectively ban drinking it on the river, just as NB’s embattled ordinance approved by voters in November does. I say “effectively” because while technically you’ll still be able to drink alcohol on the river, you can’t bring disposables – and non disposables must have closed lids. And everybody knows that most of us won’t be bringing out floating kegs and pouring our beers into canteens so they can get all warm and flat. (But it’s all about the environment, right?… Right?)

Click on Read More for details on the ordinance and why some say it doesn’t hold water in the courts.

TABC meeting agenda for March 27, 2012

The Texas Alcoholic Beverage Commission has its regularly scheduled meeting at 9:30 a.m. on Tuesday, March 27, 2012.

Click below the jump to read the agenda, which includes the strategic plan and an agenda item on the labeling issue we’ve discussed here.

Location:

5806 Mesa, Suite 185
Austin, Texas 78731

Interim charges of interest to beverage industry – and one notably absent

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The  House Committee on Licensing and Administrative Procedures, which oversees the alcoholic beverage code, hasn’t posted any meetings that will be happening in the near future. But we thought it relevant to go ahead and give you the interim charges they’re dealing with as they go into the election cycle.

State Rep. Tuffy Hamilton, chairman of the committee, says the panel probably won’t start meeting until the summer to deal with the charges. We, of course, will let you know when those meetings get scheduled.

But meanwhile, here’s what Speaker Joe Straus assigned them for the interim :

1) Review the alcoholic beverage licensing and permitting process. Explore possible reforms with interested stakeholders to streamline and improve the process.

2) Study the feasibility of streamlining the process to obtain an occupational license. Consider consolidating all occupational licenses under one state agency and whether such a move would increase efficiency and effectiveness. Analyze the process being used in other states.

3) Monitor the agencies and programs under the committee’s jurisdiction and the implementation of relevant legislation passed by the 82nd Legislature.

4) (ADDED ON MARCH 1) Study all existing occupational licensing programs and determine their impact on consumers, competition, and the cost of services. Explore the extent to which new licensing programs are necessary.

Notably absent from the interim charges that we could tell (original document here and March addendum here) is any directives to study a mandatory bottle recycling program, known as Bottle Bills in the nearly one dozen states that have passed them. (Be sure and let us know if it’s been snuck in there under some language that’s completely hidden to us….)

The Texas Legislature tried to pass such a program in 2011 with a bill that set a deposit rate of 10 cents for containers that were under 24 oz and 15 cents for larger ones. The legislation would have covered glass or plastic containers as well as cans, for beverages including beer, malt, soft drinks, water, juice, mineral water tea, coffee.

The flip side of the environmental argument for recycling, of course, is that it amounted to was a tax on the beverage industry that would be passed on to consumers – and was widely regarded as a subsidy for ALCOA, which manufactures aluminum. All of which might explain why, the only time the Texas House got to vote on the bill last session, more than 100 members gave it the thumbs down.

Bills by Houston Democrats Rodney Ellis and Garnet Coleman were bottled up in their respective committees, and an amendment by Coleman attempting to pass it as part of another bill went down in flames, with 101 no votes. The Bottle Bill groups vow to reintroduce legislation in 2013, but it doesn’t appear to be a priority for the speaker.

 

Tell the TABC: What would you change?

Credit: Charlie L. Harper III

The Texas Alcoholic Beverage Commission is in the process of updating its strategic plan for 2011-2015, so now is a good time to engage with state regulators on how you think they should approach the business of, well, your business.

At their March 27 meeting, commissioners will get a preliminary look at the external management goals as revised with input from stakeholders, who were asked to join TABC commissioners at a meeting in late February to run through the plan point by point and give their feedback on how it’s working.

Some of the preliminary reaction: Attendees wanted to strengthen the goal to streamline the licensing process, continue and strengthen prevention and underage drinking programs, and continue policing violators as a means for motivating continued compliance among those who weren’t breaking code.

TABC spokeswoman Carolyn Beck said the agency always wants to hear input from stakeholders, and that there’s never a deadline on that.

So feel free to call her later this summer and tell her how much you value the marketing practice bulletins. But it’ll be too late for the final commissioners’ vote on the entire updated strategic plan – at least this year.

Beck said she plans to present the external management goals to the commission on March 27, and the entire strategic plan at their Apr. 24 meeting, with plans for a final vote in May.

So there’s your deadline.

Documents linked or posted below the jump for your perusal. Email carolyn.beck@tabc.state.tx.us with your input. We’ll be posting some of your thoughts here as well – send me a note and we’ll publish your opinion!

Meanwhile, use the comments here to answer the following two questions, posed to stakeholders by the TABC at the Feb. 23 stakeholders’ meeting: 

  1. To be the number one regulatory agency in the nation, TABC should / must ________.
  2. In 2018, TABC will be / should be _______.

Here’s the link to the entire strategic plan. 

Click “read more” to see the external management goals that will be presented on March 27.

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