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.

What is absolutely outlawed by the ordinance is drinking anywhere in city parks, including the riverbanks. Several new restrictions go into place if the ordinance – which you can read right here – gets final approval when San Marcos City Council gets around to voting on it in May.

The proposed amendments would:

  • Ban the public display and consumption of alcohol in city parks
  • Prohibit alcohol on city owned dams, spillways and bridges
  • Ban the use of Styrofoam type products in parks and the river, including coolers, ice chests, cups, plates, toys, floats, kickboards, rings or swim gear. Styrofoam liners used as floatation devices or dock supports are exempt if they are encapsulated by a water-based acrylic or latex coating or within a boat
  • Prohibit smoking and chewing tobacco in play areas and athletic fields
  • Require the securing of lids and covers on containers in the San Marcos River Authorize the parks director to establish rules for barbecue pits
  • Prohibit all-terrain vehicles in city park areas that are not improved roadways
  • Prohibit spear guns in the San Marcos River without a permit Increase fines for littering to a range of $250 to $500
  • Apply park rules in City natural areas and greenspaces
Now. How much of this is legal? There are arguments for an against, but at least some aspects of this do merit some pretty strong arguments against its legality.
1) Whether  the ordinance will fly in courts is anyone’s guess. The city is attempting to ban drinking in all parts of city parks, as it already has with playgrounds and some other areas.  This is not new. But experts in the industry say that those city ordinances have not stood a true test in the courts.  Generally, their supporters claim they’re backed up by the notion that a city can do what it wants with city property.
It hasn’t been properly challenged because who really wants to tell a city it can’t ban alcohol in a children’s playground? Elected officials just don’t want to go there. The TABC has a thicker skin on those matters – they’re no stranger to public outrage themselves – but they aren’t in a position to say whether an ordinance is unconstitutional.
2) According to the Alcoholic Beverage Code, the only way a city can issue a general ban on alcohol is to petition the TABC to do so – and that only pertains to downtown districts, according to Randy Yarbrough, who was the assistant administrator of the TABC before he retired in 2002 after 30 years with the commission.
Section 1.06: CODE EXCLUSIVELY GOVERNS.  Unless otherwise specifically provided by the terms of this code, the manufacture, sale,  distribution, transportation, and possession of alcoholic beverages shall be exclusively by the provisions of this code. 

A couple of decades ago, the Texas Legislature wrote language into the code that allowed cities to petition for downtown bans as long as the downtown perimeter was defined. Then the TABC would consider their petition and issue an order if they decide to allow it.

The city can’t ban alcohol on the river or on private property, so they do the best they can by banning all those things you might drink alcohol out of. Which brings us to…

3) How effective is it to argue that the letter of the new ordinance doesn’t ban alcohol, but the effect of it does? Good question. The people of New Braunfels are trying to figure that out, and we’ll be watching that one closely here.

Bottom line? San Marcos and New Braunfels, while their ordinances may absolutely have the desired effect of cutting down on trash in the rivers and parks, is not 100 percent about the environment – I don’t care how many times they tell you that. It’s about curtailing the party, getting around state law, and trying to force those towns – college communities and huge summertime-fun attractions in the summer – to grow the heck up by making them calm the heck down.

Opponents showed up to last week’s San Marcos council meeting ready to present a 1000-strong petition against the idea. I’m betting there will be more names on that next week.

I’d be remiss if I didn’t also add this, from the perspective of Someone Who Knows:

The flip side of this ban is similar to what happens at college football games on a dry campus (like mine was at Mizzou in the 90s). You can’t bring beer to the game, so you end up drinking before you go.

Or, safer yet, you end up carrying hard liquor in a flask because it doesn’t go flat. Beer is, to say the least, difficult to transport and maintain once outside of its original container.

So while floating down the Guadalupe and Comal rivers this summer, I would naturally expect the ban to produce lots less beer and lots more tequila. Just what the supporters wanted, right? Who’s in?

 

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One Response to “San Marcos to resume booze ban talks at May meeting”

  1. [...] 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 [...]

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