Thursday, May 4, 2017

Cheers! Part V Ordinance 2017-6

As if things weren't complicated enough, the language of section 3-116 in proposed Ordinance 2017-6, the so-called corrective ordinance being brought up for the third reading on Monday, appears to remove the ability of any restaurant in Germantown to sell alcohol, no matter where the restaurant is located.

Here is the language-  

The above states that alcohol is not allowed to be served in Germantown EXCEPT for the following:  a) Retailers (liquor stores) in certain areas, b) wine in retail food stores (in certain areas including T4), and c) in certain areas in retirement homes. There is no exception carved out for restaurants, wherever they are located!!  

WHAT??? That is right!! No alcoholic beverages in restaurants?

What are we to make of this?  Well, what are the possiblities? 

1. Our City does not want restaurants anywhere to sell alcohol.  

2. The third drafting error in alcohol ordinances in the last six months 
has just been made


3. The City is purposely deciding to rely solely on the Smart Growth Plan to regulate alcohol sales in restaurants.  

At the present time, since the passage of Ordinance 2016-10 on November 28, there has been a been a direct conflict between section 23-763 of the Smart Growth Plan, and section 3-116 of the Alcohol Ordinance.  Alcohol sales are not currently allowed in T4 areas by section 23-763, and alcohol sales are allowed in T4 areas by section 3-116. The "corrective" proposed Ordinance 2017-6 does not remove this conflict in ordinances, because keeps it in place allowing T4 area grocery stores to be able to sell wine. Wouldn't you think that a truly corrective ordinance would remove conflicts between code sections?   

There is already evidence that #3 above is correct, and that the continued conflict could be used to remove all protections (other than liquor stores) that T4 areas have from alcoholic beverages sales by restaurants. After all, as described in the Cheers! Part I, The Ordinance Nobody Knew AboutMs. Wilkerson-Freeman discovered the alcohol change issue due to an attempt by the City, in proposed Ordinance 2016-11 (which was pulled by the City before the third reading), to allow T4 to sell alcohol in section 23-763! The section 23-763 changes in Ordinance 2016-11 were passed by the Planning Commission last fall without any explanation by the City of the consequences of making that change. Recordings of the Planning Commission meeting indicate that the page with section 23-763 changes was simply "skipped" in the City's explanation of the many zoning changes in Ordinance 2016-11 at the Planning Commission Meeting.

If proposed Ordinance 2017-6 is enacted, then the conflict between the "dueling code sections" remains in place.  The City would contend that they have no choice but to "fix" the problem of the conflict between between section 3-116 and section 23-763. It would be bad practice, after all, to continue to have conflicting code sections. This would be a way of forcing the Smart Growth section 23-763 to be changed to allow restaurant alcohol sales in T4 areas.  

Since section 23-163 only has "yes, no, or warrant" boxes, once the alcohol sales T4 box is checked, then "whoops"-- alcohol sales are now allowed in restaurants in T4 areas.  

As for the City appearing to not allow any alcohol sales in T4 under this proposed Ordinance 2017-6, the City will say that obviously the regulation of alcohol in restaurants is not covered by section 3-116 anymore;  it must only come under section 23-763 of the Smart Code!  

I guess we will all have to wait and find out what happens next in this very long, complex saga, made much more difficult by the the following: 

City's drafting errors 

City's incomplete agenda item descriptions  

City's failure to answer Ms. Wilkerson-Freeman's questions  

City misleading the the aldermen by failure to fully disclose substantive changes at readings of Ordinance 2016-10 

Omitting from from the aldermen packets the red-lined section 3-114 changes in the third reading of Ordinance 2016-10 

Failure to discuss proposed changes in 23-763 at the Planning Commission meetings 

City's incorrect contention that restaurants in T4 areas have always been able to sell alcohol......

I recommend amending Ordinance 2017-6 by removing wine sales in grocery stores in T4 areas as an exception in section 3-116. That is the only thing that will remove the conflict that now exists between section 23-761 and section 3-116. Then, and only then, would section 3-116 truly be corrected to be in line with section 23-763.

The neighborhoods of Neshoba North and Germantown Heights were promised, when Smart Growth was originally passed, that alcohol sales would be banned in T4 areas. Does the City keep its promises to neighborhoods?

Now, here are is the proposed change to 3-114: 

Note that there still is no protections for private homes. Those protections were removed with the enactment of Ordinance 2016-10. I also recommend that Ordinance 2017-6 restore all distance protections to homes (from alcohol selling establishments), that were removed when the section 3-114 was changed by Ordinance 2016-10 in November. This was the code section change that was added on the third reading, and presented to the aldermen without the changes in 3-114 being red-lined.

Here is the complete list of posts in the series on the recent alcohol ordinances: 

Cheers! Part I, The Ordinance Nobody Knew About

Cheers! Part II, The City Muddies the Waters with Last Ditch Legal Argument.

Cheers! Part III, The City Fails to Adequately Notify the Public. 

Cheers! Part IV, Between the Second and Third Reading of Ordinance 2016-10, the City Eliminates Distance Protections. 

Cheers! Part V Proposed ordinance 2017-6

No comments:

Post a Comment