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Election results elsewhere

Results of interest from elsewhere in Texas and the country…

– Three of the ten Constitutional amendments were defeated, with Prop 4 losing by nearly 20 points. It drew strong opposition from anti-toll road activists, and I daresay that was the reason for the lopsided loss. The other two, Props 7 and 8, were pretty innocuous, and I have no real idea for why they went down.

– There was one special legislative election, to replace Fred Brown in HD14. Republicans Bob Yancey and John Raney will advance to the runoff for that seat.

– In New Braunfels, the can ban was upheld, and it wasn’t close.

The container ban ordinance, which goes into effect Jan. 1, was approved by 58 percent of the vote.

Ban supporters hailed the win as vindication of their claim that residents want the river protected from rowdy tourists and their litter.

“This was a landslide that can be disputed by no one,” said Kathleen Krueger, spokeswoman for Support The Ban. “New Braunfels has spoken loud and clear that we want to protect our rivers for the next generation.”

The lead spokesman for the opposition said the real issue was government transparency and vowed to continue the fight.

“I’m not disappointed,” said Mark McGonigal. “I have an opinion and so do other people. I knew one side would prevail. But the legality of this has yet to be determined.”

A lawsuit challenging the ordinance as illegal under state law, filed by a group of local business owners, is pending in state district court.

Nearly 9000 votes were cast in that referendum.

– Elsewhere in the country, there were a number of good results for progressives. Voters in Maine restored same day registration, while voters in Ohio repealed a law that would have curtailed collective bargaining rights. Each was a defeat for the state’s elected-in-the-2010-landslide Republican Governor. Mississippi voters rejected a radical “personhood amendment” that could have had far-reaching negative effects on reproductive choice. And finally, Arizona State Senator Russell Pearce, the author of the anti-immigrant SB1070 and a notorious racist, was recalled by voters there. Small steps, but in the right direction.

Can Ban lawsuit filed

Opponents of the New Braunfels disposable container ban are already seeking to overturn the ordinance via referendum, and now some of them have also filed a lawsuit against it as well.

Tourist businesses filed a lawsuit against the city Wednesday, asking a state district judge to overturn a controversial ban on disposable containers on the Comal and Guadalupe rivers.

“These businesses love the river as much as anyone else,” said Jim Ewbank, their attorney. “But there are other, better ways to control litter.”

He described the law as “an ax murder” approach to the litter issue and said the city was “criminalizing sandwiches in baggies.”

[…]

Shane Wolf, who runs Rockin’ R River Rides, one of the lawsuit’s plaintiffs, said that if the ban scares off 5 percent of the town’s tubers, local businesses could lose $20 million next year.

Meanwhile, an overlooked appellate decision last year has cleared the way for yet another lawsuit. This one, also filed by outfitters, challenges a 2007 ordinance banning large ice chests on the rivers.

That upper court ruling gave the river outfitters legal standing to pursue the lawsuit and sent it back to district court.

Ewbank said it would make sense to consolidate the two lawsuits.

Here’s more on that 2007 lawsuit, and here’s the Third Court of Appeals ruling on that 2007 lawsuit. It’s pretty legalistic, and I mostly skimmed it, but this paragraph captures the main points of interest:

In sum, the district court properly dismissed for lack of standing the Outfitter Plaintiffs’ claims challenging the Beer Bong Ordinance, the Five-Ounce Container Ordinance, the Parks Ordinance, and the portions of the Cooler & Container Ordinance other than the cooler-size limitation. However, we conclude that the Outfitter Plaintiffs did demonstrate their standing to prosecute their claims challenging the cooler-size limitation. Furthermore, it follows from this holding that the Outfitter Plaintiffs likewise have standing to prosecute their claims for a declaration that the Comal and Guadalupe are navigable streams whose waters and riverbeds are owned by the State and held in trust for the people of the State. The City dismisses this claim as a “red herring,” in the view that the question of the rivers’ navigability is a mere abstract question of law unrelated to the parties’ dispute concerning the ordinances. We disagree.

So there you have it. On a side note, the treasurer of the Can the Ban PAC has resigned over “differences of opinions with the PAC’s leadership, revolving mostly around recent discussions of a recall petition effort against sitting City Council members that are in favor of the ban”. New Braunfels has recalled a Council member in the past over river-related ordinances, so the news that there may be an effort to do so here is no surprise.

The can banners fight back

I’ve blogged before about New Braunfels’s new ordinance that bans disposable containers on the Comal River. Since then, those who oppose the ban have gotten organized and have succeeded in putting a referendum to repeal the ordinance on the November ballot. There are plenty of people who support the ban, however, and now they have gotten organized as well.

Support The Ban, a political action committee backed by civic leaders, officer holders and the local clergy, will go head-to-head in a public relations war with Can The Ban, a PAC formed by those opposed to the controversial ordinance. That group includes businesses involved in the city’s $418 million tourism industry.

[…]

The city, Support the Ban spokeswoman Kathleen Krueger said, picked up 700,000 gallons of trash this summer, and New Braunfels says another summer like this will put it $600,000 over budget.

Leaders of 35 religious congregations publicly support the ban.

“We’re meant to be stewards of this treasure,” said Scott Tjernagel, pastor of River City Vineyard Church.

Unlike the ban opponents, I couldn’t find a Facebook page for Support the Ban. Render whatever judgment you want about that after the election. I have a feeling that turnout won’t be a problem in New Braunfels this November.

Can Ban opponents get their vote

Impressive.

[New Braunfels] City Council, confronted Wednesday by a petition challenging a controversial new law, called for a Nov. 8 election to let voters decide whether disposable containers will be banned from local rivers.

The “Can the Ban” coalition gathered more than 4,300 signatures during a whirlwind, weeklong campaign after the City Council passed the law, which takes effect in 2012.

Election laws required that the petition contain the signatures of 1,666 registered New Braunfels voters, or 5 percent of the city’s total.

City Secretary Patrick Aten said he stopped counting after his staff verified 1,690 signatures.

See here, here, and here for some background. The NB City Council could have voted to rescind the law rather than put it up to a vote, but a motion to do that was not seconded. I think they’re just delaying the inevitable. Consider this:

There’s plenty of local support to repeal the ban [Shane Wolf, a river outfitter and one of the leaders of the anti-ordinance group] said.

[…]

“We had more signatures than the number of (people who) voted for the mayor or anyone else up there,” Wolf said.

He’s right. Only 1,727 voted for Mayor Gale Pospisil, the only at-large candidate on the City Council.

Whatever you think about the issue, you have to respect that. Their Facebook page has even more fans than that, though there’s no way to know how many of them are actually in New Braunfels. Be that as it may, I’d bet on the petitioners winning in November.

Petition drive to “can the ban”

The backlash against New Braunfels’ ban on disposable containers on the rivers has begun.

The New Braunfels “Can the Ban” petition drive, up and running days after the City Council banned disposable containers on the city’s rivers, slowed to a crawl Tuesday when it ran into state election laws and confusing government databases.

The citywide coalition, which has been collecting signatures for five days in an 11th hour effort to force a November referendum on the ban, could turn in only 600 names.

Backers reached out to angry residents in offices, at their homes, in bars, and at drive-by locations in shopping center parking lots. They had gathered more than 2,000 names by 5 p.m. Tuesday, the deadline for the first petitions.

But less than a third of those names could be verified as registered New Braunfels voters, said Mark McGonigal, owner of NB Media, the print shop serving as the movement’s hub.

[…]

State law gave the ban’s opponents a small window in which to operate. They’ll need the signatures of 5 percent of the town’s voters to make the ballot. The group says it has an ultimate goal of 2,500 names, which would provide a cushion in case some names are thrown out.

The law also allows organizers to accumulate more names in the next few weeks. McGonigal says they’ll turn in another 600 names early Wednesday.

Apparently, a lot of the people who have been eager to sign the petition are visitors, which is both not surprising and not helpful to the effort. This article from Tuesday has some more information about the organization.

Organized primarily via a Facebook page that drew support from 2,500 users in less than 36 hours, the group was in the middle of counting names late Monday.

Using slogans such as Can the Ban, Yes We Cans and Let Us Decide, the group is a wide-ranging coalition of people who own and work for merchants and tourist-based businesses, as well as others who say the council overstepped bounds with last week’s vote.

Organizers consulted an attorney and election officials and learned, late last week, that they need to turn some petitions in by late today to get on the November ballot.

They held petition drives at local stores and bars over the weekend. The law requires that the petition contain names of 5 percent of the town’s registered voters.

Here’s the Facebook page, and here’s the website of the petition movement. I don’t have a strong opinion about this either way, I’m just interested in seeing how this plays out. Given that there has been a successful recall effort against a New Braunfels City Council member who had previously spearheaded new river regulations, I would not bet against these guys.

New Braunfels bans disposable containers on the river

Despite some talk that they might wait awhile to take action, the New Braunfels City Council has voted to ban disposable food and beverage containers – think cans and bottles – on waterways within its city limits.

The law covers the Comal River and a small section of the Guadalupe River that passes through the city. It does not affect the lion’s share of the Guadalupe below Canyon Dam, which is outside the city limits.

The ban covers aluminum cans and plastic bottles. It also includes paper towels and disposable utensils.

[…]

Mayor Gale Pospisil directed the city’s staff to draft the ordinance two weeks ago after a long, hot summer. The drought has rendered stretches of the Guadalupe too dry for tubers to float. City officials say that as a result, crowds, citations, arrests and litter are at all-time highs on the Comal, a 2½-mile-long spring-fed river that winds through the center of town.

There was some loud opposition at the Council meeting, and some predictable wailing and gnashing of teeth elsewhere. I understand how people may be upset at this, but I liken this situation to Lights in the Heights in my own neighborhood. It’s gotten sufficiently big and rowdy that many of the people who actually live there and are directly affected by it don’t want to deal with it any more. I totally understand where they’re coming from on this.

Which is not to say that the action Council has taken will withstand challenge.

Sitting in the audience was James B. Ewbank II, an Austin attorney representing Tourist Associated Businesses of Comal County, an organization whose members sell disposable containers.

“If you pass this ordinance,” he said, “there will be a lawsuit.”

The city has passed several ordinances in recent years in efforts to modify rowdy behavior on the Comal, including a restriction on the size of ice chests and the imposition of a fee on tube rentals. Both of those laws are being challenged on appeal.

In addition, a 2000 attempt to ban alcohol on the river was disallowed by state law. That concept of superseding state law will be the basis of the new lawsuit, Ewbank said. A 1993 state law prohibits cities from banning disposable containers. It was intended, he said, to keep recycling and sanitary disposable laws consistent from town to town.

“You are about to pass an ordinance that is directly prohibited by the Texas Health and Safety Code,” he told the council.

“We would ask that you reconsider,” he said, “based on the legal consequences.”

Opponent Jay Patrick suggested that residents be allowed to vote on the ban in November.

“A vote of the people would legitimize this issue once and for all,” he said.

I’m not qualified to evaluate the threat of a lawsuit, but history suggests there could be something to it. I do know that previous Council actions against unruly tubers resulted in a successful recall effort against one of the main players. I will not be surprised if a similar effort is launched now. One way or another, this is far from over.

New Braunfels may delay new river regulations

Looks like the preliminary approval they gave to banning bottles and cans from the Comal River may be put off for awhile before implementation.

Grassroots opposition to a proposed prohibition on disposable containers on the Comal River has persuaded the law’s sponsor to consider delaying it while other methods of crowd and litter control can be considered.

A petition against the law has been circulating at river outfitters and convenience stores. And two Facebook pages that take the city to task have drawn thousands of fans.

Mayor Gale Pospisil, who pitched the ordinance, said Tuesday she wants to step back and discuss the issue.

When the council meets Monday, she’ll propose an amendment to delay implementation until January.

“We still want a vote and we still want the ban,” Pospisil said. “But I’ve heard from a lot of people in the tourism industry who say that to try to enforce it, without advance notice, would be difficult.”

She’ll also suggest creation of an ad hoc committee, consisting of tourism officials, river outfitters, city officials and other interested parties, to draft crowd management plans before next summer.

When in doubt, form a committee and study the issue. Opponents of the ban were happy with the delay, so perhaps something they can all live with will be found. In the meantime, you don’t have to look for alternate beverage transportation just yet.

UPDATE: The Statesman has a story about this today as well.

New Braunfels bans bottles and cans

On the river, that is.

City Council gave preliminary approval on Monday to a controversial rule prohibiting disposable containers — bottles and cans — from the ecologically sensitive Comal River.

The first reading of the proposal, amending an existing ordinance, passed by a 5-2 vote. Another ordinance, which would prohibit tubers from taking an extra inner tube on floats down the river, failed 4-3.

Residents who spoke against both proposals said the council was going too far.

“On a day when the Dow went down 630 points, you’re taking a shot at the economy of this community,” say Jay Patrick, who said the rules would create health problems because on days of 100-plus degrees, tubers wouldn’t be able to take enough water with them to stay hydrated for three hours. “Let’s call it what it is. It’s a backdoor alcohol ban.”

He said the city should be renamed “New Ban-fels”

[…]

The arguments came four years after the city’s last major attempt to control river behavior. State law prohibits glass and Styrofoam from rivers but doesn’t allow the city to ban alcohol. The city can control container size, however, and has limited the size of ice chests and banned large containers for beer and small containers for Jell-O shots.

It’s sort of a tradition of mine to follow all of this stuff in New Braunfels. What can I say, I find it all fascinating, and a great example of how some fun thing that started out as small and local can grow to the point where the folks who were there at the beginning don’t recognize it any more. (See all of the fuss related to Lights in the Heights for a much closer to home example.) Here’s what I’ve blogged about the bans on beer bongs and Jell-O shots; here’s what I’ve blogged on cooler size restrictions, which led to an ultimately successful recall effort against one of the architects of these ordinances, and a lawsuit in which I presume the city prevailed. Looking back at these old posts, I was pretty disdainful of what the NB City Council was doing at first, but I must say I have a lot more sympathy for them now. You can chalk that up to my advancing state of geezerhood if you want; I will freely admit that the behavior they’re trying to regulate has considerably less appeal for me now. I don’t know how you can control the growth of something that so many people want to be a part of in a way that keeps it fun for everyone. I wish them luck as they try.

More on the microbrew compromise

Brewed And Never Battered gives its report from the House Licensing and Administrative Procedures Committee hearing yesterday.

Briefly on HB 602: No one expressed opposition, not even the Wholesale Beer Distributors of Texas, who have opposed the bill in the past. There is some forthcoming compromise on that bill that apparently everyone is happy with and it looks like you’ll be able to take beer home after a brewery tour later this year.

HB 660 had a tremendous number of supporters, and the roll of names read into the record as supporters of the bill was long and impressive. Among those in support but not wishing to testify were a number of beer distributors and the Texas Restaurant Association.

As you may have read, we’ve gained the support of the other tiers through thoughtful discussion with interested stakeholders. Beer distributors were concerned about self-distribution for a business type that already sells directly to the consumer, and we understand their points. Self-distribution has been removed from the bill. We also lowered the annual limit for aggregate production to 15,000 barrels per brewpub. A number we are very comfortable with. I’m pleased that we were able to come up with a bill that all three tiers really like.

We did have one person oppose our bill, however. Keith Strama, representing the Wholesale Beer Distributors of Texas, stood up and presented a semi-coherent rambling about how we should allow these kind of changes to the code because… well, just because. Seriously. Strama did present some other barely comprehensible argument, which was called onto the rug in short order by Committee Vice-chair Chente Quintanilla of El Paso. Video of the entire hearing, which you can find here, proves quite entertaining. Strama should have just stuck to “Uh… just because” – turns out that was a better argument than the one he was trying to make.

[…]

What’s Next.

With the WBDT exposed, the ball is back in our court. We have one or two weeks at the most to earn the votes of the committee, after that it will be too late to advance this session. Right now I think we have 4 votes. We need 5. Time to turn up the pressure and continue to urge members of the committee that this the right thing to do. Continue those calls and emails (I’ll post a sample follow up letter tomorrow).

The link to find committee members is here – you can search for the Licensing & Administrative Procedures committee, or just take my word for it that it contains the following members:

Chair: Rep. Mike Hamilton
Vice Chair: Rep. Chente Quintanilla
Members: Rep. Joe Driver, Rep. Charlie Geren, Rep. Roland Gutierrez, Rep. Patricia Harless, Rep. John Kuempel, Rep. Jose Menendez, Rep. Senfronia Thompson

It would be especially helpful for you to express your support for HBs 660 and 602 if one of these folks is your Representative. There clearly is a lot of support for this bill, but until the committee votes it out, that doesn’t mean anything. Lee Nichols has more.

Compromise on microbrew bills

As Brewed and Never Battered noted, HB660 and HB602 were scheduled for a public hearing in committee today. I’m delighted to say that it looks like there was progress achieved on them.

Rep. Mike Villarreal, D-San Antonio, laid out HB660 before the House Licensing and Administrative Procedures Committee today. The measure, in its original form, would’ve allowed brewpubs — restaurants that brew their own beer — to distribute directly to other bars, restaurants and stores. But after a compromise with the Beer Alliance of Texas, the bill would only allow brewpups to sell their bottled wares via a beer distributor.

Villarreal told the committee that brewpubs are already manufacturing beer, and that Texas’ regulatory system is stunting their growth. Brewpubs in other states are allowed to sell to distributors, meaning Texas is losing out on what could be a growing business, Villarreal said.

“If it is putting our playing field at a built-in disadvantage to our brewpubs, versus out-of-state brewpubs, then it needs to change,” said Villarreal.

But opponents of the bill, including the Wholesale Beer Distributors of Texas, say allowing brewpubs to sell to distributors would break down the three-tiered system that regulates the production, distribution and retail sales of beer separately — and which has been around since Prohibition. The system is meant to make it easier to regulate and tax beer sales and keep any one company from gaining a monopoly.

They suggest a round-about alternative: HB602, which would allow breweries to charge admission for tours and include up to two six-packs of beers to give to tourists at the end of the tour. Keith Strama, who represents the Beer Distributors, told the committee if HB602 passes, brewpubs could change their licenses to become manufactures of beer, so that they could sell to distributors, sell during tours, and open a restaurant on the premises.

Rick Donley, president of the Beer Alliance of Texas, told the committee that he is a staunch supporter of the three-tier system, but that after working with Villarreal and the brewpub owners, a compromise was reached. Originally, the bill would have allowed brewpubs to sell a limited amount of their product directly to stores and other restaurants and bars, bypassing the distributors. The amended bill makes the distributors the middle man.

Scott Metzger, a brewpub owner and executive director of Texas Beer Freedom, said he’s pleased with the compromise. Being able to sell his beer to a distributor will help him grow his business, Metzger told the committee, but would also help grow the state’s economy and its tax revenue. Metzger, who is also an economics professor at the University of Texas at San Antonio, told the committee the bill has the potential to create $680 million a year in economic activity, 6800 new jobs at brewpubs and $57 million in new tax revenue per year.

Personally, I’d prefer to see the three-tier system thrown onto the ash heap of history, but if Scott Metzger is happy with this compromise, then so am I. If what they say about HB602 is true and it gets passed, it’ll be a huge step forward. I’m genuinely optimistic about their chances now. Kudos to Metzger, Rep. Villarreal, Rep. Jessica Farrar (the author of HB602), and everyone else involved in brokering this deal. Now let’s get this bill passed so we can all enjoy the benefits of it.

Elsewhere in alcohol-related news, two other bills moved along, though neither are bills I’d been following.

The first will require liquor stores to begin reporting the final sales destination of booze they sell — and could boost state revenues as much as $25.8 million — was approved this morning by the Texas Senate.

State Sen. Kevin Eltife, R-Tyler, the author, said that under current law, the stores do not have to report the final destination of liquor sales like they do for beer, wine and malt liquor.

“This changes the reports filed with the Comptroller, and is expected to increase tax revenue to the state,” Eltife said, noting that the improved tracking of sales is expected to improve auditing and tax collection.

The second bill, by Sen. Craig Estes, R-Wichita Falls, will increase the limit for Texas winery off-premise tasting room sales from 35,000 gallons to 50,000 gallons. More wine sold will mean more revenues for the state, officials said.

Estes said that the increase is expected to allow the wine industry to continue growing at its current rate. Between 2007 and 2009, the economic impact of the Texas wine industry grew from $1.35 billion to $1.7 billion annually.

The bills in question are SB576 and SB411. With the news about HB602, I’d say it’s been a good day for Texas beer and wine lovers.

The last bill of alcohol-related interest is SB595, which is a bill to allow Sunday liquor sales, and on which there has been no further action. There’s still time in the session for it, but as Yogi Berra once said, it gets late early out there. I’m not nearly as optimistic about this bill’s chances.

Don’t plan that Sunday trip to Liquor Mart just yet

The debate over allowing Sunday liquor sales continues on.

A leader of the Texas Package Stores Association told the Senate Business and Commerce Committee on Tuesday there’s been no great demand from customers that liquor stores open on Sundays. Plus, opening on Sunday would likely spread the same sales over seven days instead of six, said association president Greg Wonsmos, who’s also president of Centennial Fine Wine and Spirits.

Some independent store owners and the Distilled Spirits Council of the United States back the bill by Sen. Rodney Ellis, D-Houston, saying it’s a matter of customer convenience and could provide extra tax revenue for the state.

Estimates range from $7.4 million to $12 million in increased state revenue per biennium. Former state chief revenue estimator Billy Hamilton said when blue laws preventing Sunday sales of certain items in stores were lifted in 1985, there was also much debate about the effects.

“I can tell you conclusively that is has both added to the convenience of shoppers and it has produced money for the state of Texas,” Hamilton said, adding that a ban on Sunday liquor store sales is one of the last remnants of the Texas blue laws.

Ellis’ bill is SB595; it did not get a vote in committee. Apparently, Comptroller Combs disagrees with Hamilton – she has announced that allowing Sunday liquor sales would not raise “no significant revenue”. I don’t know that I agree with that, but I also don’t think it really matters. I’ll say again, I see no reason to not allow liquor sales on Sunday. Whether it gets through the Lege, that’s a different story.

The Sunday liquor sales debate

As we know, one of the Legislative Budget Board recommendations for generating revenue is for the state to allow liquor sales on Sunday. The Statesman takes a look at the debate this proposal has generated.

Legislation to allow Sunday liquor sales died in 2009, but the issue gained momentum this session when the Legislative Budget Board included Sunday liquor sales on a list of revenue-raising options for the Legislature to consider.

It’s an issue that splits the distilled liquor industry.

Distillers are pushing the legislation because they think Sunday sales will increase the demand for liquor. But the Texas Package Stores Association — there are almost 2,500 stores in Texas — opposes it.

David Jabour , the president of Twin Liquors, which has 63 locations in Central Texas, said the legislation would be a burden to store owners.

He argued that opening on Sunday would just spread six days of sales over seven days and increase a store’s overhead.

“It doesn’t pay for itself,” Jabour said. “It ends up costing more in labor and overhead.”

[John Roenigk, co-owner of the Austin Wine Merchant on West Sixth Street,] disagreed.

He said Sunday is second only to Saturday as a popular shopping day. He said he wants a level playing field with his competitors — grocery stores, mainly — who are selling wine on Sundays to his customers.

“The rest of the retail world has changed around us,” Roenigk said. “For the life of me, I don’t know why our industry opposes it.”

Allowing Sunday sales is a no-brainer to me. Let’s be honest, the basis of this restriction is Christian morality – a very specific kind of Christian morality; I can attest that Catholicism has no particular injunction against alcohol. I say that has no place in the law. Individual stores may of course choose to remain closed on Sundays as they see fit, but as Roenigk said earlier in the story, they should have that choice.

The amount of tax revenue at stake here is relatively tiny, which opponents of Sunday sales have used to misdirect the debate a bit.

The budget board staff estimated that allowing Sunday sales would increase liquor consumption by almost 3 percent. That could raise an additional $7.4 million in taxes over those two years, a number that the comptroller has not verified.

Based on the budget board’s numbers, the store owners association estimates that on average a store would only sell an additional 10 bottles of liquor.

“That’s not generating much, even according to their numbers,” Jabour said.

Suzii Paynter with the Texas Baptist Christian Life Commission agrees.

When Texas lawmakers face a budget shortfall as high as $27 billion, Paynter said, $7.4 million won’t go far.

The real money, she said, would be in raising taxes on all alcohol, including beer.

She said the state’s excise tax rate on beer has remained the same since 1984. In 2006, the last time the Legislature considered — and rejected — raising alcohol taxes, some plans to increase taxes on all alcohol would have raised $800 million a year. The tax on a can of beer would have increased to 22 cents from 1.2 cents.

Mike McKinney, a lobbyist with Wholesale Beer Distributors of Texas, said that kind of increase in beer taxes would cripple the industry.

Let me pause for a moment to call BS on Mike McKinney. People aren’t going to stop drinking beer because a six-pack costs $1.20 more. I’m sure sales would drop a little, but “cripple the industry”? Please.

As for Paynter, why is this an either-or situation? I say go ahead and do both – raise alcohol taxes and allow Sunday sales. No, I don’t expect the Lege to seriously consider that, I’m just saying that an argument for one is not an argument against the other. Allowing Sunday sales is an easy one for me, and it should be something the Lege is willing to do. I don’t see the argument against it.

Lawsuit to overturn Dallas election allowing expanded alcohol sales set for September

So last November, voters in the city of Dallas among other places were asked to decide whether or not to loosen restrictions on alcohol sales there. The measure passed, but not without controversy:

Lawyer Andy Siegel, who led the opposition to the Dallas referendum, promised to file a suit to get the results of the beer and wine referendum overturned.

“The pro-wet folks simply failed to get enough qualified voter signatures on petitions to lawfully put this on the ballot,” Siegel wrote in an e-mail. Backers of the propositions said they had plenty of signatures.

And file suit they did, almost immediately after the election. The crux of the dispute:

In May, the group Progress Dallas turned in a petition to force the election. They needed 68,846 signatures to force the initiative onto a citywide ballot.

About 9 p.m. on June 23, the deadline for the Dallas city secretary to validate the signatures, City Secretary Deborah Watkins declared that the petitions contained “sufficient signatures to qualify as valid,” prompting the City Council to call the election. Watkins’ office had worked through that afternoon checking the signatures.

Watkins only later gave the actual number of valid signatures, which was 69,702. It was a number with much less breathing room than the pro-alcohol expansion forces had hoped for.

Meanwhile, Siegel has asserted the election was improperly called. He references the Texas election code, which says the city secretary is to certify to City Council “the number of qualified voters signing the petition,” not just the fact that there were enough.

The lawsuit contends that Watkins’ office failed to correctly certify the number of qualified voters who signed the petition. It also asserts that city officials failed to differentiate between the city as a whole and historically dry political subdivisions.

“By doing so, the City failed to count legal votes for an election to change the dry status previously elected by historic dry voting units,” the lawsuit alleges. “Moreover, the City Secretary and City Council unlawfully disenfranchised and prevented those qualified voters currently resign in historic dry voting units…”

Some other issues came up at a pretrial hearing:

Watkins took the stand Tuesday, and [plaintiff’s attorney Leland] de la Garza questioned her about her office’s procedures for verifying the signatures. One subject of contention was whether her office verified whether the signatures were from “qualified” voters or “registered” voters.

De la Garza argued that the law makes important distinctions between the two. Watkins saw it differently.

“They mean the same to me,” she said.

After declining to halt the issue of permits for alcohol sales that are now legal under the referendum, the judge set a date for trial.

Fannin County District Judge Laurine Blake, who has been specially appointed to preside over the case, set it for Sept. 12.

The judge also boiled the case down to the debate over whether Dallas City Secretary Deborah Watkins’ office properly verified and counted the signatures on the petition that forced the election. City attorneys had been trying to get that part of the case thrown out on jurisdictional grounds before trial, but capitulated that fight this morning by withdrawing their plea.

“That was a surprise,” one of the attorneys fighting the election, Leland de la Garza, said after the hearing.

The judge did give city attorneys one victory, agreeing as they had contended that she not have authority to hear another issue, whether the election disenfranchised historically dry political subdivisions such as Preston Hollow.

As someone who would have voted for that proposition had I lived in Dallas, I’m rooting for the city to prevail. I’m also very interested in that question of “qualified” versus “registered” voters, which I could see potentially having a big effect on future referenda. Any lawyers out there want to weigh in on this?

Some reactions to LBB recommendations

The Statesman asks around about three of the Legislative Budget Board recommendations for raising revenue. First, the suggestion to allow liquor sales on Sunday, which it projects would generate an extra $7.4 million. Not surprisingly, the liquor industry favors this, but some others don’t:

David Jabour, president of Austin-based Twin Liquors, said the demand wouldn’t be high enough to warrant another business day.

“Based on some analysis that we have done, it would actually simply spread the business over seven days,” Jabour said.

Jabour also said the guarantee of having Sundays off attracts higher quality employees.

Suzii Paynter, director of the Christian Life Commission of the Baptist General Convention of Texas — a group that opposes the expansion of alcohol availability — said the money raised by Sunday sales would be a drop in the bucket. By comparison, raising the tax on beer to a level similar to the tax on cigarettes would bring in nearly $700 million, she said.

I can’t address Jabour’s argument about Sunday sales cannibalizing other days’, but I will note that being allowed to open on Sunday doesn’t mean you have to be. As for Paynter, that isn’t actually an argument against. She’s right, higher taxes on beer would raise more money, but 1) there’s no way in hell that will happen, and 2) even if that were an option, there’s no reason you couldn’t allow Sunday liquor sales as well. It’s not an either-or choice.

Then there’s the recommendation of a fee on gas guzzlers:

Environment Texas director Luke Metzger said heavier gas-guzzlers tend to cause more wear and tear on roads.

“If the direction lawmakers are going is increased fees, that’s one fee that certainly makes sense — as a way to recoup from the damages they cause and to encourage the production of more environmentally friendly vehicles,” Metzger said.

Metzger said his group would prefer that lawmakers “take on some of the biggest polluters with direct taxes on the industries themselves, rather than regular Texans. But this is a reasonable next-best policy we could hope for.”

Yeah. Too bad this will never happen, because I think it’s a great idea, too. I just can’t see anyone on the Republican side touching it with a ten foot pole.

Finally, there’s suspending the sales tax holiday:

Dick Lavine, senior fiscal analyst at the Center for Public Policy Priorities, which advocates for low- and middle-income Texans, said the holiday was originally intended to help lower-income families. But most of the savings actually go to higher income families that can afford to purchase a full year’s worth of school supplies and clothing tax-free, he said.

Lavine said the cost to the state is not worth keeping a holiday that doesn’t help families that already carry a disproportionate share of the burden of the sales tax.

He said the additional revenue “could make a large difference in any of the programs that are being threatened with cutbacks or being shut down.”

I must admit, I hadn’t thought of it that way. This perspective makes me a lot more favorable to the idea. But as with the gas guzzler surcharge, I have a hard time seeing it get passed. In another year, with a different legislature, maybe. Not this time.

Mixing alcohol and caffeine

I don’t drink “energy drinks” or the new “caffeinated alcohol” drinks because they look hideous and I’m way too old for that crap, but apparently they have drawn the attention of the regulatory agencies for being potentially dangerous.

The Texas Alcoholic Beverage Commission this month asked vendors to cease distributing the products and remove them from store shelves. The request followed Food and Drug Administration, Treasury Department and Federal Trade Commission warnings to companies that make the beverages that they’re unsafe and illegal.

“It’s great that public officials are moving to discourage these canned products, but the mixing of the drinks is still very prevalent in bars and clubs,” said Dr. John Higgins, a Houston cardiologist. “It’s a very risky combination.”

Higgins, a professor at the University of Texas Medical School at Houston and the director of exercise physiology at the Memorial Hermann Sports Medicine Institute, recently released results of a study on the dangers from excessive consumption of just energy beverages, let alone such beverages mixed with alcohol.

His study found the combination, popular among young people in recent years, can impair cognitive and heart function.

I couldn’t find a link to Dr. Higgins’ study, which was apparently published in the Mayo Clinic Proceedings, but I found a reference to it in this article, which is also about bad effects of energy drinks. I have a feeling this is going to become a much more high profile fight soon.

One thing from the Chron story that didn’t look right to me:

Medical experts say the mixture creates “wide-awake drunks,” people unaware how intoxicated they are and able to consume more drinks before passing out. Higgins said the mixture’s opposite effects — “like pushing on the brakes and accelerator at the same time” — are hard on the central nervous system.

The cans, which contain as much as 12 percent alcohol and 200 mg of caffeine, pack a much stronger punch than, say, a rum and Coke.

Consuming a single can of Four Loko, for instance, has been compared to drinking five cans of beer and a cup of coffee, enough to give a small woman a blood-alcohol level about twice the legal limit.

I’d like to know who is doing that comparing and on what basis they make that statement, because the alcohol content of your typical American lager is 4.5 to 4.7% by volume, though there’s a lot of variation. Something that is 12% alcohol (I presume they mean by volume and not by weight here; the “by weight” value is about 80% of the “by volume” value) is therefore two to three times as alcoholic as beer, not five times as much. Either I’m missing something, or someone is being loose with the numbers. Hair Balls has more.

Dry Dallas update

Lots of money being spent to remove alcohol sales restrictions in Dallas.

The group behind next month’s ballot measures to expand the sale of alcohol in “dry” areas of Dallas has raised nearly $1 million – mainly from grocery stores, restaurants, real estate developers, hotels and other businesses that stand to benefit from passage.

Retailers have contributed the most money (about $700,000), followed by restaurants and hotels (about $140,000), commercial real estate companies ($106,000) and community members (nearly $3,000), said Gary Huddleston, co-chairman of the Keep the Dollars in Dallas campaign (formerly Progress Dallas) and a Kroger executive.

The money has been used for the petition drive to add the two initiatives to the Nov. 2 ballot, legal costs, advertising and other campaign expenses, Huddleston said.

In less than two weeks, Dallas residents will decide whether to eliminate dry areas citywide for retail beer and wine sales – largely in the southern sector. They’ll also vote on a second initiative to let restaurants in dry areas sell drinks to customers without requiring them to join a private club.

The Keep the Dollars in Dallas campaign says additional sales tax revenue from expanded alcohol sales could help the cash-needy city. Opponents contend expanded beer and wine sales would increase public intoxication, impaired driving and other violations.

“You’ll have a rash of folks – a flood of new beer and wine operators – on every corner of the city,” said Andy Siegel, a Dallas attorney who represents a coalition of churches and alcohol retailers opposing expanded beer and wine sales at retailers. “Like it or not, these stores with beer and wine permits often become a hotbed of criminal activity.”

New sales could generate $33.4 million in additional tax revenue annually and create 29,000 jobs in Dallas, according to an economic study by Waco economist Ray Perryman for Keep the Dollars in Dallas. A city of Dallas report estimated $11.3 million in annual sales tax benefits.

As I’ve said before, I’m a bit skeptical of the sales tax projections, but it doesn’t really matter to me. I’d vote for this because I see no reason for these silly restrictions to be on the books. The fearmongering by the opponents is far more ridiculous as far as I’m concerned.

How dry is Dallas?

I’m fascinated by stories about elections to allow the sale of alcohol in places where it is currently prohibited. I suppose I find it weird that these vestiges of Prohibition are still with us. I especially find it strange to learn about such restrictions in big cities like Dallas, since my impression is that they primarily exist in rural areas, but clearly that is not the case.

Since March, when Keep the Dollars in Dallas began collecting petition signatures to force an election [to eliminate dry areas in the city], a central theme of its campaign has been that added sales-tax revenue from expanded alcohol sales could help close the city’s budget gap.

City staffers buttressed that argument during a May presentation to the City Council of budget “brainstorming ideas.” The presentation asserted that the expansion of alcohol sales would add $11.3 million in sales taxes per year.

[…]

The city’s report calculated potential tax revenue from each of two ballot initiatives. One would permit the sale of beer and wine – but not liquor – at stores throughout Dallas. A second would eliminate the “private club” requirement that exists in dry areas, which requires the formality of admitting restaurant customers into a “club” before allowing them to buy drinks.

To project potential revenues from the first initiative, city staffers obtained confidential estimates of beer and wine sales per square foot of retail space from one convenience store chain and three grocery store chains in wet areas. The staffers then applied those numbers to all of Dallas assuming the entire city went wet.

The resulting prediction was that alcohol sales in the city’s grocery and convenience stores would grow from $352 million to about $973 million per year. Taxed at 1 percent, the added sales would generate about $6.2 million in city revenue.

To project revenues from the second ballot initiative, involving alcohol sales in restaurants, city staffers performed a similar extrapolation. Based on mixed-beverage tax receipt figures in wet areas from the state comptroller’s office, they estimated such alcohol sales would go from about $542 million to about $880 million. From an effective tax rate on such sales of about 1.5 percent, the city would receive an added $5.1 million in revenue.

City staffers concede that not all of these gains could actually be realized, since many of the new sales in areas going wet would be “cannibalized” from areas that were already wet.

“As a result, these revenue estimates should be considered a maximum potential revenue gain,” the city research report says.

I don’t know how much of Dallas is dry, so it’s hard for me to say how credible I find the proponents’ numbers. The only dry place in Houston that I’m aware of is a small piece of the Heights, where restaurants that aren’t fortunate enough to have a grandfathered permit cannot sell booze, but the overall effect there is miniscule. Making this area wet would make only a tiny difference to the city’s bottom line. I figure the more of the city that already allows alcohol sales, the more “cannibalization” there would be. Be that as it may, if I lived in Dallas I’d vote for these propositions on the grounds that I think it’s silly for there to be dry areas in this day and age. Whether or not eliminating them brings in extra tax revenues isn’t a factor to me. I don’t see any public policy rationale for these little alcohol-free islands, and the experience of the Collin County town of Anna strongly suggests that nothing bad will happen if they disappear. I say pour a cold one and join the 21st Century, Dallas. The DMN editorial board has a sensible take as well.

Raise a glass to Luling and Friendswood

The ballot proposition to allow alcohol sales in Luling passed easily.

The measure passed with 340 votes in favor and 118 against, with two ballots yet to be certified.

The referendum was added to the ballot after a petition was submitted by Stuart Carter, leader of Luling Citizens for Economic Growth. Carter said he hopes the new law will attract chain restaurants and hotels to the city’s Interstate 10 corridor and provide jobs for residents.

[…]

Carter, who was having a small party at his house on Election Night, said he wanted to get a 95 percent mandate, but he is happy with 74 percent.

“The voters indicated they are ready for economic growth,” he said. “I’m drinking one beer, but I might drink two tonight. I might break my one-beer rule.”

Party on, dude. And when you’ve sobered up, hop in your car and drive over to Friendswood.

Breaking a 46-year dry spell, voters Tuesday overwhelmingly approved the sale of alcohol at restaurants and grocery stores in the city’s downtown.

Proposition 1, which would allow convenience stores and wine shops to sell beer and wine for off-premise consumption, passed with 2,505 votes — 68 percent — for, compared to 1,163 — 32 percent — against, according to complete, unofficial returns.

Proposition 2, which would allow restaurants to sell mixed beverages, passed with 2,648 votes — 72 percent — for, compared to 1,021 — 28 percent — against.

Both propositions allow alcohol sales in a corridor along FM 518 between FM 528 and FM 2351.

A good day all ’round for those who enjoy a wee dram now and again.

If Lubbock can do it, so can Luling

The little town of Luling is looking to follow in Lubbock’s footsteps and allow alcohol sales.

For some towns, being dry is part of the local character: The absence of alcohol reflects the particular values of the community. For others, dry laws are relics of Prohibition, waiting to be overturned.

Stuart Carter thinks Luling falls into the latter category. Carter and his wife, Rosine, are co-chairs of Luling Citizens for Economic Growth, an organization responsible for a referendum on the Nov. 3 ballot to allow the sale of liquor throughout town.

They and others who signed the petition to get the matter on the ballot say allowing mixed-drink sales will help spur development.

Carter points out that Luling isn’t actually dry right now. The sale of beer is allowed, and liquor sales are permitted in the portion of town that lies in Guadalupe County.

“We already have drinking,” he said. “We already have a liquor store.”

And judging from the rest of the story, it sounds like the rest of the city will be able to have those things as well. Good luck, y’all.

Lubbock gets officially wet

You may recall that the city of Lubbock voted to overturn its prohibition on alcohol this May, ending its long history of being America’s largest dry city (the vote was for the whole county, but still). Well, the citizens of Lubbock have been waiting since then for the Texas Alcoholic Beverages Commission to approve permits so that the booze can actually be sold. This week, those permits finally came, and the good times started rolling.

Beer trucks fanned out across Lubbock Wednesday morning making their first deliveries to grocers and other new alcohol retailers in the newly “wet” city.

And the demand, it appears, was bigger than distributors’ ability to reach everybody Wednesday.

“We couldn’t guarantee product in all nine stores today because of the demand on the distributors,” said Eddie Owens, director of corporate communications for United Supermarkets. “Everyone wanted the product at the same time.”

“Everyone,” as it turned out, added up to 83 retail locations that received permits from the Lubbock office of the Texas Alcoholic Beverage Commission. That included a mixed beverage permit for a bar and a restaurant mixed beverage permit.

“This was new for us,” Owens said, noting that United had never before dealt with a “reset” – rearranging store design to accommodate a new product – for all nine of its local stores at the same time.

Although there may not have been enough beer to go around, at least there was a lot of beer out there.

Wine fanciers weren’t so fortunate, however. Lubbock has no local wine distributors, so shipments come from elsewhere in the state.

Owens said that on the first day, only United’s Market Street locations had wine, and a small selection at that.

I’m sure that will improve over time. Here’s mud in your eye, Lubbock.

Don’t sell that beer just yet in Lubbock

It’s always something.

It will be eight weeks or more before shoppers see beer and wine in grocers’ coolers as stores line up to receive state alcohol permits.

The Texas Alcoholic Beverage Commission will issue permits to sell alcohol throughout Lubbock County after voters overwhelming approved two propositions expanding alcohol sales during Saturday’s county-wide election.

But questions about Lubbock’s zoning ordinances could further slow the process of opening the city up to alcohol retailers.

Challenging the city’s alcohol zoning ordinances, Pinkie’s and Majestic Liquor, which own the liquor stores at The Strip, last week filed a lawsuit against the city of Lubbock and the Texas Alcoholic Beverage Commission claiming the ordinances violate state law. The Lubbock City Council approved alcohol zoning ordinances in November 2008 in anticipation of Saturday’s vote.

Anti-alcohol PAC Truth About Alcohol Sales co-chairman Josh Allen said while he’s not involved in the suit, he does not “believe the City Council has much of an ordinance to stand on.”

He described the zoning ordinances, which use specific language regulating alcohol sales in Lubbock’s West Broadway District, and set a city standard for floor space and percentage of sales allowed of alcohol retailers, as contradictory to TABC regulations.

The liquor stores asked 237th District Judge Sam Medina to bar the city from issuing the necessary paperwork to obtain alcoholic beverage permits until an agreement can be reached on the wording of the ordinance. An Avalanche-Journal story last week reported Medina will consider at a hearing later this month whether to grant an injunction.

Here’s that earlier story.

The suit has nothing to do with whether alcohol should be sold in Lubbock, but rather who can sell it where, said Zach Brady, attorney for the stores.

“As far as we’re concerned, the citizens are going to decide whether we have alcohol sales in Lubbock,” Brady said. “But if we do choose to have those sales, my clients want to make sure that the rules are fair and that they comply with state law.”

The city council approved last December changes to the city ordinances defining where alcohol could be sold in anticipation of Saturday’s vote. Lubbock overstepped its authority when the council limited the size of package stores and specified what types of businesses could sell alcohol in the same area, Brady said.

The liquor stores asked 237th District Judge Sam Medina to bar the city from issuing the necessary paperwork to obtain alcoholic beverage permits until an agreement can be reached on the wording of the ordinance.

Cities do have options for zoning under the Texas Alcoholic Beverage Code, but the ordinances they establish cannot conflict with the state law, Brady said.

“What they’ve chosen to do is not among their options,” he said. “What they can’t do, expressly under the code, is to discriminate among the different classes of alcohol retailers. They can’t let one type of business sell alcohol in a given area and not let another type of business locate in that area.”

Obviously, the current setup is a better deal for the existing liquor retailers than whatever comes next will be. I’ve no idea what the merits of their suit are, but I can’t blame them for taking this step to protect their business. We’ll see what the judge thinks. Be sure to read this Texas Monthly feature, in the May edition, about the environment in Lubbock leading up to the vote as well.

In Lubbock, there is no beer

I remember as a freshman in college staying in Lubbock overnight while driving across Texas and learning what a “dry county” is. That didn’t stop us from having a few brews – we just had to cross the county line to buy them first. I thought at the time that was a dumb way to live, but whatever. Regardless, it pleases me to learn that among other things up for election this May is a local referendum in Lubbock that would allow the sale of alcohol in stores. I can respect the argument against, though I disagree with it, and in the case of the guy who says that allowing alcohol sales in Lubbock would be a reduction in freedom because then the state would be the controlling authority and not the county, I don’t understand it. I’m still rooting for the pro-beer forces to win, because that’s just the kind of guy I am. Good luck, y’all.