February 03, 2004
OLCC Questions Viability Of Local Liquor Control Ordinance
Last Wednesday afternoon, the Portland City Council held its second hearing on the so-called time, place, and manner ordinance proposed by Commissioner Randy Leonard.
While we have pages of notes from this hearing, it's now been nearly a week since it occurred, and it might not be worth trying to go into as much detail as we had originally intended. Instead, we'll hit the one point which may derail or render ineffective such an ordinance, and then direct the reader to a pair of items from elsewhere for further background and/or commentary.
The main attraction at this hearing was the testimony of Teresa Kaiser, executive director of the Oregon Liquor Control Commission, which did not have a representative available to testify at the previous week's hearing on the ordinance.
Revealed through Kaiser's testimony was what might be the real point of contention over the ordinance (outside of the resistance from bar and restaurant associations) is a dispute over which section of the Oregon Revised Statutes has controlling authority.
Amongst Kaiser's three-part analysis of the potential issues and impact of such a TPM ordinance is the observation that the Liquor Control Act is "designed to operate uniformly throughout the state." How does this play into the TPM ordinance?
Turning first to the current draft of the ordinance itself, we find the following in Section 1:
ORS 471.164(1) "allows cities and counties to adopt reasonable time, place and manner regulations of the nuisance aspects of establishments that offer entertainment or serve alcoholic beverages if the city or county makes specific findings that the establishment would cause adverse effects to occur."
But Kaiser argues that, despite the above, stateliquor law supercedes local ordinances when the two come into conflict:
The Oregon Liquor Control Act is designed to operate uniformly throughout the state. It is paramount and superior to and supercedes municipal charter enactments or local ordinances inconsistent with it (ORS 471.045).
This apparent conflict at this stage is left unresolved, and presumably more will be said of it on February 11 when the ordinance comes before the Council for its third (and presumptively final) reading. Also noted was that the portion of the ORS referred to in the ordinance pertains only to establishments which "serve" alcohol and not also those which "sell" it -- bringing into question its authority over establishments such as convenience stores.
In the meantime, Council heard but took no action yet on revisions to the ordinance, including: a directive to report to the Council in ots effectiveness after one year; the appointment of a committee to study the ordinance's impact; the establishment and definition of a Liquor License Team and a Responsible Neighbor Program; clarification of the procedures for substantiating complaints; and other items.
For some other information on the hearing and background on the ordinance see this Oregonian article. And last week's Portland Mercury had some clearly oppositional coverage of the ordinance as well.
With Commissioner Leonard absent this week, the ordinance is scheduled to come back before the Council for its third reading and likely vote during the February 11 session of the City Council.