August 2005 •January 2005: Atlanta's 'd'evolving alcohol regulations •March 2005: From you favorite winery to your front door •May 2005: The Battle Lines for Georgia's smoking bar are hazy at best  Back To Home Page       august.05.page13.jpg             (click for printed page)                                      (click for printed page		GUEST COLUMNIST City of Sandy Springs: What's in Store for Nightlife and Entertainment? ~ Part I by cary s. wiggins The freedom of going out on your own - there's nothing quite like it. For the City of Sandy Springs, which is poised to open for business on December 1 of this year, the feeling is no doubt one of excitement layered with anxiety. This is partly because, once the incorporation takes effect, the City will forfeit its right to county services which many have taken for granted, including those services provided by Fulton County's police, fire and building departments. But the City is getting its ducks in a row. Acting under an appointment by Governor Sonny Perdue, a 5-member "Interim Government Committee" for Sandy Springs is carrying out the first steps in establishing the inner-workings of the City. The five, known as the Commission, are authorized to act on the City's behalf until a city council and mayor take office in December. The Commission is actively gathering sealed bids from companies, which might, perhaps, run everything from animal control to zoning. The Commission recently came under fire for holding meetings without notice to (and thus outside the presence of) the general public, possibly violating Georgia's open meetings laws. The Commission's closed-room mentality has some concerned. Restaurants and nightclubs in Sandy Springs, for example, remain in the dark on a number of issues that might affect them. Will the City adopt a smoking ban? Will it roll back hours of operation? Will it reduce the number of locations eligible for alcoholic beverage licenses? Even more basic, will the City honor Fulton County liquor licenses? In the area of nightlife entertainment, the City stands to flourish where other local governments have floundered. The City can establish a licensing and permitting process, which compliments a comprehensive land use plan. If successful, the plan could prevent clusters of nightclubs from monopolizing parking spaces or causing traffic jams, as have plagued City of Atlanta residents and retail businesses. A workable plan could also promote a healthy balance of land uses, which will reduce the risk that areas will become blighted with low-rent businesses or temporary housing. One segment of the City's nightlife population, which is closely watching the incorporation process, is the adult entertainment industry. A handful of strip clubs (located in Sandy Springs) are embroiled in litigation with Fulton County over the validity laws, which severely restrict their ability to operate. The Commission has indicated that it will step up the effort to target adult businesses for restrictive legislation and tighter enforcement. With millions of dollars at stake for the businesses, that could prove a tall order. The Commission sees opportunities. In its recent request for bid proposals, in fact, the Commission noted, "With a 'clean sheet of paper,' the City has the remarkable opportunity to build the most effective, efficient and responsive local government in the State of Georgia. The Commission believes that creative solutions are available that can produce the model government for the 21st century." All this is very exciting. What is unsettling is the transition period. The accumulating contract bids anticipate a term beginning January 1, 2006 through December 31, 2006. The concern is a possible gap in coverage: Who will provide those governmental services that are not contracted for (and in place) by January 1, 2006? The state legislation that formed the City, House Bill 37, recognizes a potential gap in government services coverage. It provides that Fulton County "shall continue to provide ... all government services and functions which Fulton County provided in that area as of [December 1, 2005]" throughout 2006, though it allows the City to assume responsibility for any services or functions during 2006 as it and Fulton County agree upon. HB 37, § 6.02(c) (emphasis added). (This arrangement, however, has spawned a lawsuit challenging whether House Bill 37 violates the Georgia Constitution by requiring a county to provide basic services to a municipality.) The City is in its embryonic stage. Here it will wrestle with lawsuits and lobbying pressures for months. The City's entertainment industry may very well be forged in the process. What will come remains to be seen.   (Cary S. Wiggins is a member of Cook, Youngelson & Wiggins, LLC, a law firm specializing in civil rights issues unique to the restaurant and hospitality industry. You can reach Cary by e-mail at cary@cywlaw.com.) GUEST COLUMNIST The battle lines for Georgia's smoking ban are hazy at best by cary s. wiggins With all the hubbub about Georgia's proposed statewide smoking ban, one might think that Georgia does not already ban smoking in public places. The State has for years criminalized smoking of tobacco products in certain public places. As the law stands, you cannot smoke in "an enclosed elevator" which is used by the public. Nor can you smoke on a "public transportation vehicle," or upon land which is operated by a day-care center, group day-care home or family day-care home (during their respective hours of operation, of course). In fact, it is a crime to smoke in "any area which is clearly designated by a no-smoking sign." So what's all the fuss about a smoking ban? The Georgia Legislature recently passed Senate Bill 90, better known as the "Georgia Smokefree Air Act of 2005." The Act aims to prohibit smoking in a variety of establishments - and even "outdoor areas." You might ask, if the existing law prohibits one from smoking in areas designated by no-smoking signs, how will the Act really change things? The Act changes who, exactly, gets to decide whether to put up that "no-smoking sign." The Act appears pervasive at first glance. It prohibits smoking in "all enclosed facilities" throughout the state, as well as "all enclosed public places" and "all enclosed areas within public places of employment." But there are significant exceptions. For one, you can still smoke at home - unless your home serves as a "licensed" child care or adult day-care facility, that is. If you're an adult smoker who lives in your parent's basement, don't worry; that is not the type of adult day-care facility the legislature had in mind. Bars and restaurants are also exempt under the Act, but under certain circumstances. To permit smoking, the facility must restrict entry (and employment) to persons 18 years of age and older. Smoking is also permitted in a "private room" of a restaurant or bar. Legislation, which bans smoking sometimes, spawns unusual exceptions. The Act is no different. It exempts "long-term health facilities" and certain "rooms in health care facilities" from its prohibitions. So, even though a steakhouse owner might have trouble allowing his or her customers to smoke cigars, the nursing home resident can smoke a cigarette while lounging aside the shuffleboard. Like every law, smoking bans have their supporters and opponents. The battle lines, though, are hazy and definitely multidimensional. On one side, you have a growing swell of public sentiment wishing to promote clean air, supported by organizations such as the American Lung Association, which cites dangers associated with second-hand smoke. On another side, you have smokers (and even non-smokers) who feel that the burdens associated with second-hand smoke do not outweigh the benefits of free choice to light up in establishments like bars. On yet another side, I believe, you have restaurant and bar owners. Though they often view morality legislation with a healthy dose of skepticism, they do so because they want what their public wants. That is, the restaurant and hospitality industry usually just wants what customers want. Governor Sonny Purdue has until July 1, 2005 in which to sign the Act into law. He's intimated that his decision, if any, will be a tough one. Hazy indeed. (Cary S. Wiggins is a member of Cook, Youngelson & Wiggins, LLC, a law firm specializing in civil rights issues unique to the restaurant and hospitality industry. You can reach Cary by e-mail at cary@cywlaw.com.) GUEST COLUMNIST From your favorite winery direct to your front door? by cary s. wiggins As one constitutional scholar, Laurence Tribe, has noted, there are only two ways an ordinary citizen acting in a private capacity can violate the United States Constitution: one way is to enslave someone and thus violate the Thirteenth Amendment; the other way is to bring a bottle of wine into a state in violation of its alcoholic beverage laws, thus violating the Twenty-First Amendment.1 If you have ever attempted to purchase wine over the Internet, it is the latter constitutional amendment which no doubt spoiled your on-line shopping excursion. This is because the State of Georgia severely restricts direct-to-consumer wine shipments. You might be saying to yourself, "Wait a minute. I once visited a California winery and mailed some wine back to Georgia. So why can't I visit the World Wide Web and purchase more wine from that California dealer from the comforts of my home?" Presently, under Georgia law, a winery may ship wine directly to a Georgia consumer. For this to happen, however, (1) the consumer must purchase the wine while physically present on the premises of the winery, and (2) the winery must verify that the consumer purchasing the wine is the legal age (usually 21) and doesn't hold a Georgia liquor license himself.2 Even if these conditions are met, the winery cannot ship "in excess of five cases of any brand or combination of brands to any one consumer or any one address in this state in any calendar year."3 Why the funky law? Georgia's alcohol regulatory system is based on a "three-tier" structure. Under this structure, manufacturers (e.g., wineries) produce and then package alcoholic beverages. The manufacturer (whether within or outside Georgia) then ships the packaged alcoholic beverage (e.g., wine) to an in-state wholesaler. That wholesaler distributes the wine to retail dealers who sell the beverages directly to consumers, either in unbroken packages or for consumption on the premises. The State maintains strict segregation between the three tiers. With few exceptions, a single company may not be both a manufacturer and a wholesaler. This means that out-of-state wineries cannot sell substantial quantities of wine directly to Georgia consumers. But this might change soon. By July 2005, the Supreme Court will decide whether the Twenty-First Amendment permits states to discriminate against out-of-state wineries. (The case was argued this past December.) The States have argued that requiring wine to be sold through distributors and retailers aids tax enforcement and prevents sales to minors. In Georgia, for example, the tax on imported alcoholic beverages is twice the tax on beverages manufactured within the state. Wine producers and free-trade organizations dismiss these arguments. They claim that requiring out-of-state wineries to go through a bureaucracy of wholesalers and retailers before they can sell in any given state unfairly burdens interstate commerce. Put bluntly, the wineries have argued that the States (with much encouragement and support from the wholesalers) are engaging in economic protectionism. Georgia's wholesalers are watching this case closely. Just imagine: purchasing your favorite pinot noir from your plush sofa on a lazy Sunday. Wouldn't it be nice? (Cary S. Wiggins is a member of Cook, Youngelson & Wiggins, LLC, a law firm specializing in civil rights issues unique to the restaurant and hospitality industry. You can reach Cary by e-mail at cary@cywlaw.com.) 1. Gordon Eng, Old Whine in a New Battle: Pragmatic Approaches to Balancing the Twenty-first Amendment, the Dormant Commerce Clause, and the Direct Shipping of Wine, 30 Fordham Urb. L.J. 1849 n.1 (2003) (citing Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Comment. 217, 220 (1995). 2. O.C.G.A. § 3-6-32(a)&(b) 3. O.C.G.A. § 3-6-32(c) GUEST COLUMNIST Atlanta's 'd'evolving alcohol regulations by cary s. wiggins Last year the City of Atlanta adopted several ordinances (following several high-profile incidents in the Buckhead entertainment district), which tighten the reins on Atlanta's restaurants and nightclubs. While of course recognizing Atlanta's 'vibrant and successful nightlife culture,' the City seized an opportunity to update some old alcohol laws. Few dispute that the City's alcohol laws need updating. After all, before 2004, the City did not even define the term 'bar' in its alcohol code. The brewing controversy (forgive the pun) is how to modernize these laws. It's been said that law is like sausage: you don't want to see either being made. That maxim certainly rings true here. To guide it through the law-making process, the City tasked the Alcohol Technical Advisory Group (ATAG) to perform a comprehensive review of the zoning and alcoholic licensing code. Conspicuously absent from ATAG's handpicked members are restaurant and hospitality industry owners and operators. ATAG's skewed composition might explain why it recommended chopping the hours of operation, with little or no input from the hospitality industry. Neighborhood activists, you see, fuel ATAG. And, it seems, with a police force, which is both understaffed and under funded, the City is increasingly enlisting its citizens for alcohol code enforcement. The City's new laws reflect this mentality. Now would-be Atlanta restaurants must shuttle for months between neighborhood meetings before obtaining their liquor licenses. You might ask, who better to testify about the adverse effects, if any, of granting (or renewing) an alcoholic beverage license than affected local residents? Residents unfortunately often lack objectivity when it comes to regulating nightclubs and restaurants in their neighborhoods. This is why Georgia law, technically, does not allow community opposition to serve as the sole basis for denying an alcoholic beverage license. Even though residents cannot decide license applications, they can (and do) recommend what action the Mayor should take on pending applications. But the line between 'recommending' and 'deciding' licensing matters is not always clear. Recently proposed laws further blur this fuzzy line. One proposed ordinance, for example, would require all alcohol-licensed venues, such as the Colonnade Restaurant, Philip's Arena and even Pizza Hut, to maintain a security person for 6 months following a determination that 10 violations of the law occurred within 400 feet of the premises over the past year. The problem is &emdash; Atlanta's police department is currently not equipped to determine whether 10 violations have occurred within 400 feet of each one of Atlanta's thousands of alcohol-licensed establishments. This is a recipe for random enforcement: organized neighborhood associations could comb police reports for alleged violations near disfavored package stores and nightclubs. Residents have legitimate concerns about their communities. They need more police officers and the police officers need more resources and better pay. By effectively delegating alcohol enforcement decisions to its citizens however, the City is creating a licensing system that is driven by the vote. What is evolving (or, some would say, 'd'evolving) is a system of licensing by public favoritism or opposition. 2005 should prove an interesting year for Atlanta's nightlife. (Cary S. Wiggins is a member of Cook, Youngelson & Wiggins, LLC, a law firm specializing in civil rights issues unique to the restaurant and hospitality industry. You can reach Cary by e-mail at cary@cywlaw.com.)