Nov. 20, 2009
BAR MORITORIUM?: Council Advised to Seek Other Night Spot Enforcement Options Due to Legal Issues
Owner Asks, ‘Where is the ABCC?’
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Whether shaken and stirred with a stick or poured from draft, the mixture of alcohol consumption and the presence of people may lead to, well, in Mayor Kim Wolfe’s words (slightly out of context) “challenges.” The mayor’s classification of nightclub violence as an issue in search of a solution afforded a platform for essentially stepping back from all in one category summations and focusing on what appears to be issues with up to three to five percent of the so-called bars (i.e. private clubs, i.e. nightclubs).
Despite a range of ideas from council members --- moratorium, strict underage drinking enforcement, metal detectors, capacity limits --- a bouncer named Andrew Varney conveyed every challenging problem in search of a solution in two words: A person.
Establishing his club security credibility by stating, “I was there the night [name withheld , open investigation] got shot. I escorted him outside,” Varney convincingly gave an insider looking out perspective to council members and city administrators.
BOUNCERS LACK AUTHORITY ONCE PATRON OUTSIDE OF BAR
“We don’t have any authority,” Varney said. He then cited instances where he barred a patron only to have the owner let him in for $50 through a side door. He told of not having the authority to take the car keys of an intoxicated patron. “That’s theft.” He also recited a recent incident where a female patron found a man asleep in her vehicle upon leaving the club.
And, no matter if clubs screen for weapons and contraband, Varney summed up, “the trouble [making] elements are still out there” [on the street].
Perhaps, Varney’s insight would have been better harvested earlier in the Public Safety Committee meeting Thursday night, Nov. 19 in council chambers. He and assistant city attorney, Lora Maynard, appeared to have answers which sparked back to the drawing board approaches to bar violence in a college town.
Actually, his revelations coupled with those of bar owner, Herb Stanley, left the process ready for a lengthy brainstorming session.
Let me back up, slightly. Vice Council Chairman Mark Bates had worked hard on reworking the previously tabled bar moratorium ordinance. Despite apparently all the tweaks and exceptions, a moratorium is a moratorium and based on attorney Maynard’s interpretation of West Virginia Supreme Court precedent, they have not been upheld.
The state’s highest court relies upon a series of cases beginning with Bittinger v. Corporation of Bolivar, 395 S.E.2d 554 (1990), which addresses distinctions between zoning permits (whether a certain area may be used for a particular purpose) and building permits (how an area in the community is used). From that case, the Court more recently addressed the topic (but not in connection to bars) in State of WV ex. Rel. Anita D. Brown v. Corp. of Bolivar (2000) (http://www.state.wv.us/wvsca/docs/fall00/27913.htm)
Since Huntington issues “special permits” for businesses that would serve alcoholic beverages, the matter first goes before the zoning authority. By establishing even a limited (90, 120, 180 day moratorium), the city would violate the court’s interpretation that “the ordinance [special permit] of a municipal corporation may not be repealed by mere motion or resolution, nor can the operation of the ordinance be suspended by resolution or by the acts of municipal officers … A suspension to be effective … [must be] by an instrument of equal dignity i.e. an ordinance.”
While Ms. Maynard noted that the facts in the precedent cases involved permit process moratoriums of housing developments, she relied upon the “equal dignity doctrine” to advise that the proposed bar moratorium would run afoul of court rulings. As a result, the city likely would find the ordinance challenged and the court rejecting it with the city required to honor all applications submitted in the interim and possibly paying attorney fees for the plaintiffs. “My advice is to repeal and replace,” she said. Although Bates noted a potential loophole by pursuing said moratorium under “emergency status” that requires a two-thirds vote, Maynard cautioned that council should look at revisions to the permit process , rather than attempting to apply a new ordinance restricting or suspending an existing provision of the municipal code.
“My advice is you cannot do that [a moratorium ] … and no, I would not pursue an emergency moratorium,” Ms. Maynard said.
Bates expressed other options of limiting the number of licenses in a particular area (downtown has approximately 75 liquor licenses) and potentially adding a “distance restriction” within the downtown. In addition, Morgantown is pursuing an ordinance that requires a 1 a.m. closing times for newly issued licenses. Another possible option, could be to require the license holder allow police inspection as a condition for doing business in the City of Huntington.
In addition, he referred to a Cabell County Substance Abuse Prevention Partnership (CCSAPP) study that determined a relationship between on premise alcohol sales and crime. To view charts of the crime and alcohol area clusters, you can download the pdf by clicking HERE. To read the short (seven page) study, you can download by clicking HERE.
HOLBROOK CITES HIGH BAR OCCUPANY LEVELS AS #1 COMMON DENOMINATOR
Police Chief Skip Holbrook praised 95% of the bar/restaurant/nightspots as “extremely responsible business partners,” thus, linking the trouble areas to a small percentage of bar owners.
Based on his analysis, “the critical common denominator” reflecting bar related crime relates to the “capacity” of the establishment. The problem bars fit 500, 600, and even 1,000 people into the venue. There’s direct correlation between the size of a bar and the volume of violent incidents.
He suggested that the owners of high capacity bar do not “seem to be able to manage that [size] crowd.”
As for installing metal detectors ( i.e. “wanding” for guns), the machines must be operating 100% of the time (not broken as at some bars) at the main entrance and exits. But (unfortunately), “it only takes a blind eye for seconds (or minutes)” for people with weapons or controlled substances to enter.
He also suggested stiffer enforcement of underage consumption and allowing police inside.
SCARY SOMETIMES, BUT CRIME IS DOWN
Public Safety Committee Chairwoman Frances Jackson, along with councilman Dave Ritter, expressed concerns about safety downtown, which were countered by others.
Ritter stated “It’s scary downtown sometimes,” adding that “something has to be done” about the violence attributed to bar but more broadly influenced by drug and gun sales. Jackson told of a ‘shots fired’ incident in which the stray bullets pierced windows on the Fourth and Ninth floors of the senior high-rise on Third Avenue.
By contrast, councilman Russ Houck said, “I haven’t found [downtown] unsafe,” adding that he has “seldom” seen an “unsafe problem.”
Mayor Kim Wolfe stated that “he has complete confidence in the police department” and that “crime has been reduced from last year.”
NUISANCE ORDINANCES WORK
Both Chief Holbrook and council chairman Jim Insco referred to separate existing nuisance ordinances.
Holbrook told how the newly established chronic public nuisance ordinance based on the number of calls for police services to a venue had closed a troublesome establishment in the 20th Street sector of the city with full cooperation of the property owner. (Editor’s Note: The owner of Club Babylon where the shooting on Fourth Avenue took place willingly turned in his liquor license and closed the bar.)
Insco referred to use of a zoning ordinance in 1998 to close a nuisance bar on Fourth Avenue.
Dropping back to the need for brainstorming, bar owner Herb Stanley emphasized that underage drinking, serving obviously intoxicated individuals, and other issues pertain, not to the city, but the state Alcoholic Beverage Control Commission (ABCC). “Why aren’t they here?” he asked, adding that the liquor commissioner calls the shots.
Ironically, Stanley acknowledged an “out of hand” situation in Huntington. He told the committee that he has “daughters” and keeps one in Myrtle Beach.
Committee chairwoman Jackson indicated that a second meeting would be convened in a few weeks.
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BAR MORITORIUM?: Council Advised to Seek Other Night Spot Enforcement Options Due to Legal Issues
Owner Asks, ‘Where is the ABCC?’
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Whether shaken and stirred with a stick or poured from draft, the mixture of alcohol consumption and the presence of people may lead to, well, in Mayor Kim Wolfe’s words (slightly out of context) “challenges.” The mayor’s classification of nightclub violence as an issue in search of a solution afforded a platform for essentially stepping back from all in one category summations and focusing on what appears to be issues with up to three to five percent of the so-called bars (i.e. private clubs, i.e. nightclubs).
Despite a range of ideas from council members --- moratorium, strict underage drinking enforcement, metal detectors, capacity limits --- a bouncer named Andrew Varney conveyed every challenging problem in search of a solution in two words: A person.
Establishing his club security credibility by stating, “I was there the night [name withheld , open investigation] got shot. I escorted him outside,” Varney convincingly gave an insider looking out perspective to council members and city administrators.
BOUNCERS LACK AUTHORITY ONCE PATRON OUTSIDE OF BAR
“We don’t have any authority,” Varney said. He then cited instances where he barred a patron only to have the owner let him in for $50 through a side door. He told of not having the authority to take the car keys of an intoxicated patron. “That’s theft.” He also recited a recent incident where a female patron found a man asleep in her vehicle upon leaving the club.
And, no matter if clubs screen for weapons and contraband, Varney summed up, “the trouble [making] elements are still out there” [on the street].
Perhaps, Varney’s insight would have been better harvested earlier in the Public Safety Committee meeting Thursday night, Nov. 19 in council chambers. He and assistant city attorney, Lora Maynard, appeared to have answers which sparked back to the drawing board approaches to bar violence in a college town.
Actually, his revelations coupled with those of bar owner, Herb Stanley, left the process ready for a lengthy brainstorming session.
Let me back up, slightly. Vice Council Chairman Mark Bates had worked hard on reworking the previously tabled bar moratorium ordinance. Despite apparently all the tweaks and exceptions, a moratorium is a moratorium and based on attorney Maynard’s interpretation of West Virginia Supreme Court precedent, they have not been upheld.
The state’s highest court relies upon a series of cases beginning with Bittinger v. Corporation of Bolivar, 395 S.E.2d 554 (1990), which addresses distinctions between zoning permits (whether a certain area may be used for a particular purpose) and building permits (how an area in the community is used). From that case, the Court more recently addressed the topic (but not in connection to bars) in State of WV ex. Rel. Anita D. Brown v. Corp. of Bolivar (2000) (http://www.state.wv.us/wvsca/docs/fall00/27913.htm)
Since Huntington issues “special permits” for businesses that would serve alcoholic beverages, the matter first goes before the zoning authority. By establishing even a limited (90, 120, 180 day moratorium), the city would violate the court’s interpretation that “the ordinance [special permit] of a municipal corporation may not be repealed by mere motion or resolution, nor can the operation of the ordinance be suspended by resolution or by the acts of municipal officers … A suspension to be effective … [must be] by an instrument of equal dignity i.e. an ordinance.”
While Ms. Maynard noted that the facts in the precedent cases involved permit process moratoriums of housing developments, she relied upon the “equal dignity doctrine” to advise that the proposed bar moratorium would run afoul of court rulings. As a result, the city likely would find the ordinance challenged and the court rejecting it with the city required to honor all applications submitted in the interim and possibly paying attorney fees for the plaintiffs. “My advice is to repeal and replace,” she said. Although Bates noted a potential loophole by pursuing said moratorium under “emergency status” that requires a two-thirds vote, Maynard cautioned that council should look at revisions to the permit process , rather than attempting to apply a new ordinance restricting or suspending an existing provision of the municipal code.
“My advice is you cannot do that [a moratorium ] … and no, I would not pursue an emergency moratorium,” Ms. Maynard said.
Bates expressed other options of limiting the number of licenses in a particular area (downtown has approximately 75 liquor licenses) and potentially adding a “distance restriction” within the downtown. In addition, Morgantown is pursuing an ordinance that requires a 1 a.m. closing times for newly issued licenses. Another possible option, could be to require the license holder allow police inspection as a condition for doing business in the City of Huntington.
In addition, he referred to a Cabell County Substance Abuse Prevention Partnership (CCSAPP) study that determined a relationship between on premise alcohol sales and crime. To view charts of the crime and alcohol area clusters, you can download the pdf by clicking HERE. To read the short (seven page) study, you can download by clicking HERE.
HOLBROOK CITES HIGH BAR OCCUPANY LEVELS AS #1 COMMON DENOMINATOR
Police Chief Skip Holbrook praised 95% of the bar/restaurant/nightspots as “extremely responsible business partners,” thus, linking the trouble areas to a small percentage of bar owners.
Based on his analysis, “the critical common denominator” reflecting bar related crime relates to the “capacity” of the establishment. The problem bars fit 500, 600, and even 1,000 people into the venue. There’s direct correlation between the size of a bar and the volume of violent incidents.
He suggested that the owners of high capacity bar do not “seem to be able to manage that [size] crowd.”
As for installing metal detectors ( i.e. “wanding” for guns), the machines must be operating 100% of the time (not broken as at some bars) at the main entrance and exits. But (unfortunately), “it only takes a blind eye for seconds (or minutes)” for people with weapons or controlled substances to enter.
He also suggested stiffer enforcement of underage consumption and allowing police inside.
SCARY SOMETIMES, BUT CRIME IS DOWN
Public Safety Committee Chairwoman Frances Jackson, along with councilman Dave Ritter, expressed concerns about safety downtown, which were countered by others.
Ritter stated “It’s scary downtown sometimes,” adding that “something has to be done” about the violence attributed to bar but more broadly influenced by drug and gun sales. Jackson told of a ‘shots fired’ incident in which the stray bullets pierced windows on the Fourth and Ninth floors of the senior high-rise on Third Avenue.
By contrast, councilman Russ Houck said, “I haven’t found [downtown] unsafe,” adding that he has “seldom” seen an “unsafe problem.”
Mayor Kim Wolfe stated that “he has complete confidence in the police department” and that “crime has been reduced from last year.”
NUISANCE ORDINANCES WORK
Both Chief Holbrook and council chairman Jim Insco referred to separate existing nuisance ordinances.
Holbrook told how the newly established chronic public nuisance ordinance based on the number of calls for police services to a venue had closed a troublesome establishment in the 20th Street sector of the city with full cooperation of the property owner. (Editor’s Note: The owner of Club Babylon where the shooting on Fourth Avenue took place willingly turned in his liquor license and closed the bar.)
Insco referred to use of a zoning ordinance in 1998 to close a nuisance bar on Fourth Avenue.
Dropping back to the need for brainstorming, bar owner Herb Stanley emphasized that underage drinking, serving obviously intoxicated individuals, and other issues pertain, not to the city, but the state Alcoholic Beverage Control Commission (ABCC). “Why aren’t they here?” he asked, adding that the liquor commissioner calls the shots.
Ironically, Stanley acknowledged an “out of hand” situation in Huntington. He told the committee that he has “daughters” and keeps one in Myrtle Beach.
Committee chairwoman Jackson indicated that a second meeting would be convened in a few weeks.
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