SUMMARY RECORD OF A BRIEFING SESSION OF THE CHAPEL HILL

TOWN COUNCIL, TUESDAY, MARCH 19, 1996 AT 5:00 P.M.

Mayor Waldorf called the briefing session to order at 5:00 p.m. Council Members in attendance were Joyce Brown, Joe Capowski, Pat Evans (arrived at 5:30 p.m.), Richard Franck and Lee Pavão. Council Members Andresen, Chilton and Powell were unable to attend. Also in attendance was John Simmons of the State Division of Alcohol Law Enforcement (ALE). Town staff members in attendance were Town Manager Cal Horton, Assistant Town Manager Sonna Loewenthal, Police Chief Ralph Pendergraph, Police Captain Tony Oakley, Police Sergeant Harold Horne, Administrative Analyst Jane Cousins, Fire Chief Dan Jones, Fire Marshall Joe Robertson, Town Clerk Peter Richardson, Police Attorney Terrie Gale and Town Attorney Ralph Karpinos.

Mr. Horton introduced Police and Fire officials who would be making brief presentations to the Council this evening. He called upon Mr. Karpinos for introductory remarks.

Mr. Karpinos said the role of Town law enforcement officers was limited to the scope of State statutes regarding local alcohol beverage control regulations. He noted that the Town had recently adopted regulations concerning the regulation of open containers of alcohol. Mr. Karpinos stated that the Town could also enact local ordinances regarding the licensing of establishments serving alcoholic beverages. He also noted that the Town was entitled to receive notice of, and an opportunity to comment upon, applications for alcoholic beverage licenses. Mr. Karpinos said that alcoholic beverage licenses for individual establishments were subject to suspension or revocation under State statutes or other penalties. Mr. Karpinos noted that Mr. Simmons of the State Division of Alcohol Law Enforcement (ALE) was in attendance to answer any Council questions this evening.

Chief Pendergraph said he had checked back through police department records as far back as 1981 and found that the subject matter of this evening's briefing was nothing new. He noted that the major difference was that the downtown area was much more congested now compared to 1981. Chief Pendergraph said his department was trying to make it possible for people to enjoy the atmosphere of the downtown area in a consistently safe fashion. He noted that some persons were not mature enough to deal with the consumption of alcohol in unsupervised situations. Chief Pendergraph stated that most assault cases in the Town involved people who had been drinking to the extent that they would be considered to be impaired if they were driving a vehicle. He noted that although the situation in the downtown area had been better recently, it would be necessary to have consistent enforcement levels to make sure that this continued. Chief Pendergraph stated that ALE officers were working hard to strike a balance between making people feel welcome in the community and allowing them to enjoy themselves, while enforcing the State's alcoholic beverage regulations.

Fire Marshall Joe Robertson said that alcoholic beverages, crowded establishments and blocked exits appeared to go somewhat hand in hand in the downtown area. Noting that he had come to work for the Town in 1965, Marshall Robertson said that citations for overcrowding, blocked exits and other violations in establishments serving alcoholic beverages had not been issued until 1993 and 1994, when a partnership was undertaken between the Fire Department and the Police Department's "E" (downtown area) squad. Stating that some bar owners and managers unfortunately appeared to be more interested in making money than protecting the safety of their patrons, Fire Marshall Robertson said it was important that the Fire Department continue frequent nighttime inspections of establishments in the downtown area.

Sergeant Harold Horne said that most business owners in the downtown area did a good job of policing their businesses relative to serving of alcoholic beverages. He also stated that unfortunately some establishments did not do a good job of checking identification or keeping crowds under control, since most college students were not of the proper age to enter these businesses. Sergeant Horne said that some young people used identifications of persons who looked like them, or they used altered identification to purchase or consume alcoholic beverages. He stated that a very valuable tool for law enforcement officials in the Town was the open container ordinance. Sergeant Horne said that crowds in the street at 2:00 a.m. are now more subdued due to the open container ordinance. Sergeant Horne thanked the Council for their passage of the open container ordinance.

Council Member Franck inquired whether there was any difference between bars, restaurants and private clubs in terms of who was doing a good job in terms of policing alcoholic beverage consumption. Sergeant Horne said that, with the exception of one or two overcrowding situations, there were very few problems with restaurants. He also stated that some of the clubs and bars played by the rules, while others did a very poor job in this regard. Council Member Franck asked whether there were more problems in bars or private clubs. Sergeant Horne said that most problems occurred in bars.

Chief Pendergraph provided Council Members with a handout outlining alcohol-related violations during 1995 in patrol area number one, the downtown area. He noted that as a result of people being compliant with the open container ordinance, the number of violations to date in 1996 had decreased from the same period in 1995. Chief Pendergraph said the Police Department would be setting up a database control system of establishments selling alcoholic beverages in the near future. He noted that underage persons who bought alcohol could be found guilty of an infraction and subject to a $25 fine, similar to a traffic ticket. He also stated that a grandfathering provision for underage drinkers established in 1986, made violation of alcohol ordinances by nineteen and twenty year olds an infraction, rather than a misdemeanor. Chief Pendergraph stated that bar employees found guilty of serving alcohol to underage persons were subject to being charged with misdemeanors. Mayor Waldorf said a possible change in State law might be merited given this situation. Council Member Brown asked whether these laws and penalties were established by the State. Chief Pendergraph said this was correct.

Mr. Horton asked Chief Pendergraph to elaborate on the victimization of persons who had been drinking excessively.

Chief Pendergraph said that many criminals believed that persons who had been drinking were easy prey as crime victims, especially in predictable, secluded areas. Chief Pendergraph also noted that Sergeant Horne had reported that patterns in the incidence of vandalism could also be tied to alcohol consumption.

Mayor Waldorf inquired whether or not a fairly recent accidental shooting death in a fraternity house had involved alcohol. Sergeant Horne said this incident did involve significant underage alcohol consumption.

Noting that it took some period of time for persons to become inebriated, Council Member Capowski inquired about the type of training offered to bartenders, so that they would not serve inebriated persons. Mr. Horton said he believed that this was a function related to enforcement, rather than training. He stated that some bartenders were not exercising the training they had received on not serving to inebriated persons. Sergeant Horne noted that in some cases, other persons make purchases of alcoholic beverages. He added that ALE officers issued citations to inebriated persons on the basis of how they looked and acted.

Mayor Waldorf asked whether was any reason that bartenders could not require more than one form of identification from individuals. Sergeant Horne noted that some establishments required a student identification and a driver's license. Mr. Horton said some establishments did not have sufficient personnel or attention to detail on enforcement matters of this type.

Police Attorney Terrie Gale noted that since no changes had been made in the grandfathering provision enacted by the General Assembly in 1986, nineteen and twenty year olds found in possession of alcoholic beverages faced infraction charges, while persons eighteen and under could be charged with a misdemeanor offense. Mayor Waldorf inquired whether or not it was correct that being charged with a misdemeanor involved going to court and having this on one's record if found guilty. Ms. Gale said that this was correct. She added that an infraction was a non-criminal violation of the law. Council Member Evans inquired whether underage alcohol possession would be considered a misdemeanor offense under existing State law. Ms. Gale said that this was correct.

Ms. Gale said the reason that the Town staff had suggested enactment of an open container ordinance were the public safety related difficulties of enforcing public consumption regulations. She stated that there were not nearly enough Town police officers to physically observe persons actually consuming alcohol beverages on Town streets or other areas where public consumption was not permitted. Ms. Gale noted that the Town had received authorization from the General Assembly to regulate open and closed alcoholic beverage containers on Town streets and other areas. She stated that the ordinance was a very, very useful one which was serving its purpose, to cut down on public consumption, very well.

Ms. Gale noted that it was current practice for the Town's Police Department to review Alcohol Beverage Commission permit applications within Town limits. She stated that in light of the fact that some of the Police Department's recommendations on applications had not been followed, staff was suggesting that the Town Council possibly undertake responsibility for reviewing these applications. Mayor Waldorf inquired whether or not the Police Department's recommendations to the State Alcoholic Beverage Commission had ever been followed. Chief Pendergraph noted that the Town had only infrequently had to make negative comments relative to ABC applications. He stated that licenses had been granted to establishments having overcrowding and problems with serving underaged persons, despite the Police Department's written comments on these matters. Chief Pendergraph said indications were that the Alcoholic Beverage Commission had recently been giving greater weight to the Police Department's comments and concerns. Mr. Horton stated that recent changes in leadership of the Alcohol Beverage Commission had been helpful.

Council Member Brown asked whether or not the ABC was an appointed board. Ms. Gale said she believed that the Governor was responsible for appointing all members of the Board. Mr. Simmons said this was correct, noting that the Chair headed the Board, which also had two associate members.

Ms. Gale stated that although some people might feel that the Town was taking on new power and involvement with ABC permitting decisions, the opportunity for such involvement was currently mandated by the State of North Carolina. She said that the main effect of the proposed resolution would be that the Council would review ABC license applications within Town limits, rather than having the Police Department perform this function.

Council Member Capowski inquired about the duration of an alcoholic beverage sales permit. Mr. Karpinos said that there was no time limit on alcoholic beverage permits, unless violations of ABC regulations necessitated revocation or suspension of the permit. Council Member Capowski asked whether or not establishments needed to apply for permits every five years. Ms. Gale said this was dependent upon the type of business involved.

Noting that the Town was recently receiving better assistance and cooperation from ABC, Council Member Evans asked whether or not it was necessary for the Council to assume the proposed role relative to review of applications. She also inquired what type of response the Town was getting when infractions were reported to ALE officials. Mr. Horton said staff recommended Council review of the permits because they thought it was a good idea. He also said that ALE officials had demonstrated a new responsiveness to Town concerns in recent months. Mayor Waldorf noted that it might be too early to assume that things had changed for the better. Mr. Horton expressed his concurrence with this observation.

Mr. Karpinos noted that although there was no provision for the Town to be involved in the repeal of existing ABC permits, the Town did have the option of not renewing local business licenses in such cases. He also stated that the Town currently had the opportunity to comment on the initial issuance of existing ABC permits. Mr. Karpinos said there were several criteria which the Town could possibly utilize to recommend the non-issuance of such permits. Mayor Waldorf noted that these might include the location of existing establishments selling alcoholic beverages and the past performance of bar owners. Mr. Horton suggested that it might be helpful to use the term "original permit" when referencing the types of applications that the Town could review.

Council Member Brown asked whether or not permit revocations and suspensions were handled at the State ABC level. Mr. Karpinos said that the State Alcoholic Beverage Commission handled these matters, including monetary fines and revocation or suspension of ABC permits. Council Member Pavão requested an overview of the Buckhead's permit situation. Mr. Horton said that this establishment had been operating under a temporary permit and was denied a permanent ABC permit by State officials. Mr. Simmons stated that temporary permits enabled establishments to operate normally during periods of investigation by ALE. He noted that this process provided local governments with an opportunity to object to permit applications early in the review process. Mr. Simmons added that it was somewhat more difficult to revoke or suspend the license of an establishment which had a permanent, rather than a temporary, permit.

Stating that there had been approximately twenty-five different alcohol establishment related violations during a recent eighteen month period, Council Member Capowski asked why no establishments other than Buckhead's had had their permits revoked or suspended.

Mr. Horton said these types of violations were handled by agencies other than ALE. Mr. Simmons presented copies of a listing of recent violations in the Town involving his agency.

Ms. Gale said another issue was the rewriting of the sum of parts of the Town's business license ordinance, provisions of which had been unchanged since 1961. She noted that there had been a process in the Town Code of Ordinances since 1961 which permitted the Council to revoke Town business licenses. Ms. Gale said she was not aware of any instances were these provisions had actually been utilized. She also said that the Council might wish to consider using this authority in the future.

Mayor Waldorf inquired about the recourse for persons who had their business licenses repealed by the Town. Ms. Gale said such parties could appeal to the North Carolina Superior Court.

Council Member Franck requested additional information concerning

the Town's handling of enforcement relative to the open container ordinance. Chief Pendergraph said the Town was looking into the possibility of field testing beverages to determine whether or not beverages in open containers were alcoholic or non-alcoholic.

Mr. Karpinos said that staff would prepare a thorough follow-up report and possible related actions for Council consideration on April 2nd. He added that staff would be pleased to answer questions from the Mayor or Council Members regarding the matters referenced this evening.

Mayor Waldorf inquired whether or not possible legislative initiatives could be raised at the April 2nd meeting. Mr. Horton said that this was correct.

The briefing session concluded at 6:04 p.m.