City Attorney Calls for Update of Beer Ordinance

April 8, 2014
Dwayne Page
Vester Parsley
W.J. (Dub) White
Shawn Jacobs

Questions about enforcement of the city's beer ordinance were raised again Monday night during the monthly meeting of the Mayor and Board of Aldermen.

Former alderman W.J. (Dub) White came before the mayor and aldermen last month complaining that stores licensed to sell beer in the city were being allowed to display beer advertisements within their stores in a manner which can be clearly seen from the streets, apparently a violation of the city's beer ordinance.

City Attorney Vester Parsley, Jr. said last month that he would have a definite answer to White's concerns by the April meeting but was concerned that this provision in the beer ordinance may be unconstitutional, improperly restricting freedom of speech.

White addressed the mayor and aldermen again Monday night, seeking Parsley's answer. "I'd like to know what has been done about advertising beer?"

The city's beer ordinance states " It shall be unlawful for any beer permit holder to advertise within the business establishment in any manner visible from off the premises of said establishment the price or location of beer on the premises of the establishment".

In response, Parsley said he thought the existing beer ordinance needs to be updated because there are portions of it that may be unenforceable. "It is my recommendation tonight to the city council that the city or beer board go back and have a workshop with MTAS (Municipal Technical Advisory Service) to look at amending or modifying our current ordinance. The ordinance is out of date. It has sections that are not applicable anymore because we have already changed by ordinance the times of operation and the fact that you can serve beer in restaurants. There is also a statute (state law) that we're not in compliance with which would allow people who sell beer to have a generic sign outside of their business that says they sell beer. It is my recommendation that the beer board get together with MTAS to help develop a new ordinance which would be in compliance with the current ordinance that we have changed (amended) and in compliance with state law. Until that is done, I don't think any action should be taken," he said.

Referring to the city's legal battle with the DeKalb Utility District, Parsley said the city has already lost a court fight over an outdated ordinance and he doesn't want the city to possibly have to be in a similar position again if someone were to bring a legal challenge to the validity of the beer ordinance.

Even if the city were to update its beer ordinance, White contended that the city must enforce the ordinance it has now in the meantime. "You have to go by the old ordinance until you get a new ordinance fixed up," said White.

"It's been on the books for several years but in my opinion there are provisions of this beer ordinance that are certainly not enforceable and questionable," Parsley responded.

If the ordinance is changed, Alderman Shawn Jacobs said he wants the city to keep a provision that would continue to require beer permit holders to meet the $25,000 wholesale value grocery stock inventory requirement. Currently stores are responsible for furnishing the city a certified inventory each year. The city, however, never does its own investigation or inventory to make sure the stores are in compliance. "Whether we want to admit it or not there is a giant pink elephant in this room and that is we have one store that has nowhere near $25,000 worth of inventory. It may be certified but it doesn't take a rocket scientist to figure out that they don't (comply). I think that needs to be left in the statute and I think it needs to be enforced," said Jacobs.

"They bring us a certified copy (each year) that it (their inventory) is $25,000," said Mayor Jimmy Poss

"We can walk in there (store) and know that is not true," answered Alderman Jacobs. "It is our duty. It is our sworn duty as members of this body to enforce the laws of the city. I understand completely what Mr. Parsley is saying and I do agree that we need to clean up the ordinance and to make sure it's constitutional and up to date. But I believe we do need to enforce the stipulations of the ordinance that we wish to keep. One that I personally wish to keep is that they (stores) remain required to have the $25,000 worth of grocery inventory. We have one (store) that obviously doesn't. Another one questionably does. I'll bet one (of the stores) doesn't have $5,000 worth of inventory. I've gotten calls on this not just from Mr. White but from other members of the community as well," said Alderman Jacobs.

Parsley said if the city were to do an independent inventory to ensure compliance, it would have to include all stores that sell beer and that would be costly to the city. "Our ordinance actually says we must take an inventory (from the stores) by April 15th of each year. It's a certified inventory done by someone from outside the city. In the past we've always taken them (accepted inventories from the stores). In order for us (city) to do an inventory, we would have to do all of them and that could get very expensive in time and personnel. But those are things that need to be cleaned up (in the ordinance)," Parsley concluded.

Under the city beer ordinance, "Before a beer permit is issued, the applicant must show proof of ownership of $25,000 (Wholesale Value) in grocery stock, excluding all tobacco products, gasoline, petroleum products, antifreeze, and beer. Further, should a beer permit be granted to an applicant, the beer permit holder must maintain at all times on the premises where beer is sold a minimum grocery stock of $25,000 (Wholesale Value), excluding all tobacco products, gasoline, petroleum products, antifreeze and beer. The holder of a beer permit must provide at least one inventory per year to the Smithville beer board, said inventory to be submitted no later than April 15 of each year. Moreover, the inventory submitted annually to the Smithville beer board by the permit holder shall be performed by a business entity whose principal or predominant business is that of conducting inventories. Further, the accuracy of said inventory shall be sworn to and affirmed before a Notary Public by the agent or employee of the business entity retained to conduct the inventory. Moreover, the Smithville beer board shall have the authority to request additional inventories during the year, and each holder of a beer permit shall be obligated to provide the Smithville beer board with any requested inventory."

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