February 11, 2004
(Updated) 'Time, Place, And Manner' Ordinance Heads For City Council Vote Next Week
Note: This post has been updated. Any and all updates appear at the end of the original post.
At a comparatively brief City Council session this afternoon, the proposed ordinance intended to give the City authority to regulate establishments which sell or serve alcohol was readied for a vote to come next week.
As currently constructed, the ordinance incorporates some changes resulting from continuing concerns over some of its provisions, the most prominent of which in essence relate to previously-reported concerns over which portion of the Oregon revised Statutes actually has controlling authority.
Proponents of the ordinance (introduced by Commissioner Randy Leonard), argue that since ORS 471.164 gives the City authority to regulate the time, place, and manner "of the nuisance aspects of establishments that offer entertainment or serve alcoholic beverages," the ordinance would merely be enacting that authority for Portland.
An OLCC legal analysis, however, countered that the Liquor Control Act has a superceding and controlling authority which would make use of ORS 471.164 essentially irrelevant. Concerns were also raised during the previous hearing that the term "serve" excludes mere sellers of alcohol (such as convenience stores), since the OLCC operates under specific statutory (or perhaps its administrative) distinctions between "serving" and "selling" alcohol.
As currently drafted, the ordinance attempts to mute these issues in two ways. First, it specifally defines "serve" (the term used in ORS 471.164) as "to furnish, provide or supply alcoholic beverages to patrons or customers" Further, the City argues that the legislative history of ORS 471.164 proves that such a "plain, ordinary meaning" test is applicable.
To explain, hopefully: Supporters of the OLCC analysis contend that since ORS 471.164 of course exists within the context of Chapter 471 ("Alcoholic Liquors Generally"), the legislative intent clearly was to have the "serve" versus "sell" distinction applied to ORS 471.164's use of only the term "serve."
But the City (by way of testimony from Ben Walters, a Deputy City Attorney with the City Attorney's Office) argues that when what become ORS 471.164 was passed, it was passed with no provisions as to where in the Oregon Revised Statutes it was to be placed -- a decision left in such cases to the legislative counsel. Therefore, it's placement within Chapter 471 ("Alcoholic Liquors Generally") cannot be construed as legislative intent.
Utlimately, while the City feels that it has its bases covered, this may very well be one of the matters which lands the ordinance (if passed) in court. And there's no way to tell in advance to which analysis the courts will commit themselves.
We said there were two ways in which concerns were addressed in the currrent draft. What's the other? Well, the OLCC also maintained that it and it alone has the authority under Oregon law to regulate the serving and selling of alcohol. But one of the original remedies as part of this ordinance was to limit the hours during which an establishment found to be in violation could serve or sell alcohol.
To sidestep this issue, the current language provides only for the regulation (read: limiting) of the hours of operation for the establishment as a whole, rather than merely restricting the hours during which it could serve or sell liquor.
We're not certain how many people representing the liquor interests were present at today's hearing, but once that little nugget gets out, expect opposition to surge once again. Whatever one thinks of the ordinance, it's difficult to believe that establishments up in arms over the regulation of the hours during which they could serve or sell liquor would somehow be more comfortable with the regulation of the hours during which they could be in operation at all.
Whatever the case, the ordinance is headed for a Feburary 18 vote. Which is as good a place as any to mention that we finally realized something.
We finally realized what's been missing from all of the debate, and why it thus far has been so difficult for us to take a clear and firm position on the proposed ordinance.
(For example: While we have no doubt that there are some seriously nuisance establishments in Portland, we to some degree question whether some sort of new authority is required. So that divides our thinking. And, admittedly, we sometimes wonder if this isn't partially a case of too many people getting all worked up about living in an urban area but not wanting to accept what that means. We're kind of stuck on this particular point, to be honest.)
Nowhere in this debate have we seen liquor interests and neighborhood interests talking to each other.
Each side seems to believe it knows the whole story regarding the interaction of alcohol-serving (or selling) establishments and their surrounding neighborhoods, and neither side seems to be entering into an actual conversation about the other side's concerns.
There's a stink of dismissal coming from each side, at least in terms of what we've heard stated and argued publicly.
We don't hear the liquor interests trying to engage in a high-level and public conversation about the reality of truly nuisance establishments. We don't hear the neighborhood interests trying to engage in a high-level and public conversation about the real potential for over-zealous complaintants.
Both sides in this debate have legitimate concerns. And as far as we can tell, nothing about this process has done anything other than exacerbate divisions between the two parties, when it should have been constructed in a way that forced them to listen to each other's very real (or very potential) grievances and concerns.
We don't believe this needed to be some sort of cultural war. But both sides keep talking as if it were one, with all the narrowing and self-interested non-dialogue such wars normally entail.
In the end, if nothing else, this means that the passage or failure of this ordinance perhaps is only the beginning of a larger and more protracted battle between two parties which never needed to be this much at odds.