Is Your Liquor Ordinance Tight Enough to Hold Water (Or Beer)?

Its closing time, and you may be wondering where your liquor ordinance is. Is it working for your city? Is it drafted to require patrons to stop drinking and start heading home in a prompt manner? Does it require bar staff to vacate the city premises within ½ hour of closing? Or is it letting those wily partiers simply close the doors and claim that they’re having a private party where (wink, wink) no one is being served.

Or is it license renewal time and you’re faced with a bar owner who won’t maintain the bar’s property. Are you wondering if you’ll be able to deny the renewal, because of the litter on the property? Have you checked your ordinance lately?

Or maybe the city has a bar owner who doesn’t hire adequate security and allows fights to break out. Or regularly violates noise restrictions and now the city would like to revoke the establishment’s liquor license. Does your ordinance address the procedures the council should follow to provide sufficient due process? Council may fear letting the bar owner continue to endanger the public, but also the lawsuit that might result if the disgruntled bar owner doesn’t get a fair process.

Over the years, I have heard staff and officials voice these types of nuisance concerns about liquor establishments in their city many times. Often they want to know if state law covers their concerns and provides a means to address them. Most of the time, however, it simply doesn’t. This surprises many city officials.

State Law Regulation of Liquor Establishments:

The Minnesota Liquor Act heavily regulates two main issues. First, it regulates the issuance of licenses (types of licenses, who gets them, insurance required, license fees, etc). Second, it regulates illegal sales (to minors or obviously intoxicated persons, at the wrong day or time, etc.) and related dram shop liability issues. The Liquor Act doesn’t offer much to help cities trying to deal with nuisance behaviors that can occur around liquor establishments – for example, unsightly properties, noise and disorderly conduct.

Fortunately, the Liquor Act favors city ordinance regulation on these topics. Minn. Stat. § 340A.509 states, “a local authority may impose further restrictions and regulations on the sale and possession of alcoholic beverages within its limits.” As a result, city ordinance may always be more restrictive than the Liquor Act and it can certainly “fill in the blanks” where state law is silent.

What Should We Include in Our Liquor Ordinance?

Here are some suggestions for provisions to include in your local liquor ordinance to make it tight enough to hold water (or beer). These suggestions all relate to issues generally not covered in depth by the Liquor Act. Most of these suggestions are drawn from the Model LMC Liquor Licensing Ordinance that can be found at this link: http://www.lmc.org/media/document/1/liquorlicensingandregulation.pdf. You can also find detailed sample language for these provisions there.

Evacuation Clause:

An evacuation clause requires the bar to have a “last call” and to have customers leave promptly at closing time. This prevents lingering and socializing that may create a noise nuisance or other disorderly conduct. It also reduces the temptation for illegal sales when the bar doors have closed to the public and the supposed “private party” commences. Some evacuation clauses also require staff to leave the premises within a reasonable time after closing, while still allowing for clean-up and other end of shift activities.

Nudity and Adult Uses:

Cities may ban liquor establishments from having adult entertainment or nudity on the premises. The First Amendment offers important protections to exotic dancers and other adult uses. However, the First Amendment does not protect the right of people to drink while performing (or watching) exotic dancing.

Location of Liquor Establishments:

For cities, the only state Liquor Act restriction on liquor establishment location relates to state facilities and zoning. Minn. Stat. § 340A.412 prohibits locating a liquor establishment in “areas restricted against commercial uses through zoning.” Cities who don’t want liquor establishments near schools, daycares, churches or youth centers should put these restrictions in their local ordinance. If a city doesn’t have zoning in place, the city may also wish to restrict location near residences as well.

Types of Licenses:

Over the past few years, the State Legislature has added several new types of licenses to the Liquor Act. It has also broadened the categories of businesses that may receive existing licenses. If you haven’t updated your liquor ordinance in the past decade, you may be missing out on brew-pub licenses, culinary class licenses and wine licenses for theaters. Cities are not required to issue these types of licenses, but if they choose to issue, must authorize them through local ordinance.

Times and Days of Sale:

Cities are authorized by Minn. Stat. § 340A.504 to restrict times and days of sale beyond state law requirements. However, restricted on-sale hours for intoxicating liquor must apply equally to on-sale hours of 3.2 percent malt liquor. A city may not permit the sale of alcoholic beverages during hours when the sale is prohibited by the Liquor Act.

Define Liquor Act Terms More Restrictively:

The Liquor Act allows restaurants to obtain on-sale licenses. Minn. Stat. § 340A.101 Subd. 25 defines the term restaurant pretty simply as “an establishment . . . where meals are regularly prepared on the premises and served at tables to the general public, and having a minimum seating capacity for guests as prescribed by the appropriate license issuing authority.” Cities may wish to define a restaurant more narrowly. For example, requiring a certain percentage of the profits to be related to food sales, require a minimum seating capacity, require menus and waiters, and prohibit “heat and eat” type establishments where only pizza is reheated and offered to customers.

Cities may also wish to define the terms “non-profit” or “charitable organization” for the purpose of temporary 3.2 beer licenses under Minn. Stat. § 340A.403 and “compact and contiguous” for the purposes of Minn. Stat. § 340A.410. These are both relatively vague terms found in the Liquor Act that raise concerns from time to time.

Due Process Concerns

Violations of city liquor ordinances can result in both civil and criminal penalties. As a result, ordinances should be written clearly to avoid US Constitutional 14th Amendment concerns (ordinances provisions that are vague will be considered void). The city liquor ordinance should specify the types of behaviors/problems that may result in penalties. This puts the liquor licensee on notice that they may be punished –either civilly or criminally – for violations.

There are also state law due process requirements that should be met in the city liquor ordinance. The Liquor Act at Minn. Stat. § 340A.415 specifically enumerates acts for which a license may be revoked or a penalty imposed. This is a limited list that includes:

• Selling alcoholic beverages to another retail licensee for the purpose of resale;

• Purchasing alcoholic beverages from another retail licensee for the purpose of resale

• Conducting or permitting the conduct of gambling on the licensed premises in violation of the law;

• Failing to remove or dispose of alcoholic beverages when ordered by the commissioner to do so; and

• Failing to comply with an applicable statute, rule, or ordinance relating to alcoholic beverages,

As a result, cities are limited by the Liquor Act to revoking licenses or imposing civil penalties for issues that violate city ordinance. Prohibited nuisance behaviors should be listed and defined in the liquor ordinance, if the city would like to revoke licenses or impose penalties related to these issues. For example, litter, noise, disorderly conduct, etc. The city may also choose to simply cross-reference other sections of city ordinance on these topics in the liquor ordinance.

Finally, the Liquor Act requires that notice and hearing must be provided to a licensee prior to a suspicion or revocation. As a result, city ordinance should also specify procedures for notice, hearing and imposition of any penalty.

Conclusion

Liquor establishments can be thriving local businesses that add to the local community and economy. However, these types of businesses may also create unique nuisance concerns. A carefully drafted city liquor ordinance must be the bedrock for city regulation and enforcement efforts.

Smoke Readers & Zoning Ordinances

Welcome to Our Series on Regulating Smoke


One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation.

This article is the final segment in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on zoning ordinance standards regulating smoke and ambient air standards.

Smoke in Zoning Ordinances

Cities commonly regulate smoke as part of their zoning ordinance. Frequently, these rules are found in a “performance standards” section that regulates all types of nuisance conduct that may result from uses, such as noise and vibrations.

In reviewing these ordinances, I find that cities generally follow three methods of smoke regulation, including the Ringlemann chart, adoption of current Minnesota Pollution Control Agency (MPCA) standards and use of something called “State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1 15.” For this blog entry we will discuss each method in detail.

Minnesota Pollution Control Standards:

Many cities simply adopt MPCA standards as their performance standards for zoning uses. Typical language is as follows:

SMOKE AND PARTICULATE MATTER. The ambient air quality standards of the Minnesota    Pollution Control Agency shall apply to the release of airborne materials.

Generally, MPCA standards are found in the Minnesota Rules ch. 7009 (available at this link: https://www.revisor.mn.gov/rules/?id=7009). The MPCA standards appear to be based on federal standards. According to the MPCA, cities may adopt more stringent local standards for smoke.

The Ringlemann Chart:

Ringlemann was a French scientist born in 1861. His practice of measuring smoke by using cards of various colors from white to black is still used today. More his smoke chart can be found on the CDC website at: http://www.cdc.gov/niosh/mining/pubs/pubreference/outputid330.htm.

Ordinance provisions using the Ringlemann chart typically look like this:

Smoke: Measurement of smoke shall be at the point of emission. The Ringlemann Smoke Chart published by the United States Bureau of Mines shall be used for the measurement of smoke. The following table indicates for the various zoning districts the acceptable level of smoke emissions. These provisions, applicable to visible gray smoke, shall also apply to visible smoke of a different color but with an equivalent apparent opacity.
Zoning District Maximum Level of Emission Exception
R-1, R-1x, R-2, R-3, R-4, and Developing Residential Areas Ringlemann No. 0 None
B-1, B-4, CDC, M-3, MRD Ringlemann No. 1 Smoke of a Shade Equal to No. 2 on the Chart may be Emitted for a Total of Eight Minutes during any one hour period.

Cities using the Ringlemann chart are using a legal and legitimate standard for measuring smoke. However, cities using the chart may run into practical difficulties related to enforcement should they have a true smoke problem use on their hands.

The problem with the Ringlemann chart is that it is speaking a different language from the current MPCA standards. Smoke at Ringlemann No. 1 does not automatically equate to a similar smoke measurement under MPCA standards. As a result, it may be difficult for a city to understand (without expensive professional evaluation) how their standards relate to mandatory state standards.

In addition, cities needing to take a Ringlemann measurement may have difficulty finding a suitable “expert” trained in measuring smoke this way. Smoke measurements these days are typically obtained by certified “smoke readers.” Smoke readers are generally trained to measure smoke using MPCA and federal measurement standards. This is because most smoke reading programs are designed to help people become “in-house” smoke readers for private industries that may be facing federal penalties for emissions violations.

Minnesota Regulation APC 1-15

A substantial number of cities also have this language adopting Minnesota Regulation APC 1-15 as their standard for smoke regulation:

The emission of smoke by any use shall be in compliance with and regulated by the State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1-15, as amended.

This language is potentially problematic because it is outdated. These standards have not been current since the mid-80’s and have been superseded by the current Minnesota Rules. If faced with an enforcement issue, the city may have difficulty obtaining a copy of these standards and reading them in concordance with current standards. In addition, certified smoke readers might not be familiar with these standards.

Conclusion

This concludes our 4-part series on smoke regulation. Far from being an ephemeral topic – smoke is a frequent and lasting concern to Minnesota cities. Ordinances on smoke touch many areas of resident lives – from business endeavors to private recreational uses. Recent changes in technology – related to both methods of heating (such as the new popularity of outdoor wood boilers) and methods of measuring smoke may prompt cities to review their ordinances. In addition, recent law changes related to tobacco products regulation may require ordinance redrafting.

Hot Topic: Fence Ordinances

The Star Tribune recently ran an article identifying a new trend in home improvement – the construction of large “privacy” fences in residential neighborhoods. These fences tend to be in the 6 to 8 foot range, dwarfing the standard front yard white picket fence of yesteryear. The article notes “the passion for fences has led some cities to refine their ordinances to prevent people from erecting too-tall fences or building fences with the ugly side facing out.”

The article muses that the fence trend may be related to the recent problems in the real estate market. Homeowners, who in a hotter housing market may have moved to avoid the sight of “their neighbor in the hot tub,” can’t move – so they build a fence instead. State law provides only limited regulation of fences. For example, Minn. Stat. § 561.02 prohibits “spite fences” as a private nuisance. The lack of state regulation means that most fence regulation will be an entirely local, city matter.

The Star Tribune article prompted me to review the cache of fence ordinances at LMC. I was curious also, to investigate whether or not challenges to city fence regulations were common. Challenges have occurred – most notably the recent unpublished case of State v. Enright, A09-795 (MN Ct. App. 2010)(this case is discussed in previous blog entries). Generally, the city’s authority to regulate fences for the public welfare has been upheld in Minnesota and nationally.

A. City Regulation of Fences.

Why do cities regulate fences? There is certainly an aesthetic concern at play. Tall, front yard fences and poorly maintained fences can have a negative effect on neighborhood surroundings. However, most cities do not regulate out of concern for aesthetics alone. Common public safety concerns leading to fence regulation are:

• Preventing tall fences from obstructing clear view on streets for vehicles, children and pedestrians;
• Greater ease of access for fire personnel;
• Clearer view of streets for patrolling police,
• Prohibiting dangerous materials (such as barbed wire and electrified fencing) from use in residential areas;
• Prohibiting poorly maintained fences (which may fall into the right of way or on passersby).

In reviewing the cache of LMC ordinances, the most common features in fence ordinances are:

• Limiting height in front yards (usually under 4 feet);
• Allowance for taller backyard fences (usually 6 feet);
• Regulation of fences on corner lots that may limit sight lines/sight triangle;
• Fence construction materials requirements (some list either prohibited materials, permitted materials or both);
• Requiring the fence installer to construct fence solely on their own property (and demonstrate property lines);
• Requiring the “finished” side of the fence to face outward towards the neighbors;
• Requirements for fence maintenance and repair;
• Setbacks from property lines or natural features such as lakes.

B. Fence Ordinances and Void for Vagueness Concerns.

As demonstrated in Enright (cited above), fence ordinances are susceptible to challenges that they are void for vagueness. All ordinances, including fence ordinances, must be clearly drawn as to give an ordinary person an idea of the type of conduct prohibited. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985).

1. Definitions: Fence

In reviewing numerous city fence ordinances, I noted that some significant definitions were missing. This is potentially problematic should an ordinance be challenged in court. Specifically, some ordinances did not define the term “fence.” If the term fence is undefined, you may run into problems enforcing your “fence” ordinance against properties where the clever property owner insists they have constructed “walls.” In addition, you may wish to consider – can shrubbery be a fence (when planted along a property line)? How about a trellis or a landscaping berm?

2. Definitions: Good Repair

Cities also tend to require that fences be “kept in good repair.” It may be helpful to spend some time thinking about criteria that indicate good/bad repair and put those specific criteria into the ordinance itself. For example, does good repair mean the fence is painted or treated with a weather resistant coating? Free of rust? Has strong supports so it won’t fall? Does a fence in bad repair have missing slats, holes or protruding pieces? General language such as “good repair” is permissible in an ordinance – and needed so that the ordinance can apply to a variety of situations. But an ordinance must also contain direction to the staff enforcing the ordinance that limits their discretion to avoid arbitrary enforcement. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985). As noted in State v. Reha, 483 N.W.2d 688 (Minn.,1992), one person’s concept of “clean” or “well-maintained” can be wildly different from another’s.

Here is some good sample language related to fence maintenance from the Apple Valley City Code § 155.351.

C) Fence regulations. A fence is a public nuisance and prohibited accordingly if it does not comply with the following requirements:
(1) The fence shall be firmly fastened and anchored in order that it is not leaning or otherwise in the stage of collapse.
(2) The fence shall be maintained in sound and good repair and free from deterioration, loose or rotting pieces, or holes, breaks, or gaps not otherwise intended in the original design of the fence. The fence shall be free from any defects or condition which makes the fence hazardous.
(3) All exterior wood surfaces of any fence, other than decay resistant woods, shall be protected from the elements by paint or other protective surface coating or treatment, which shall be maintained in good repair to provide the intended
protection from the elements.
(4) No fence section shall have peeling, cracked, chipped or otherwise deteriorated surface finish, including but not limited to: paint or other protective coating or treatment, on more than 20% of any one linear ten-foot section of the fence.
(5) Any link fence, where permitted, shall be constructed and maintained in such a manner that no barbed ends be located at the top of the fence.

3. Definitions: Standards for Measuring Height

It may also be helpful to check if your ordinance specifies how height will be measured. Specifically, will the height be measured from the bottom of the fence or the grade? For example, this seems like a good provision from the Lake Elmo City Code § 154.129:

(B) Fence height in interior yards. No fence shall be constructed exceeding 72 inches in height measured from grade in interior yards; and, any portion of such fence above 42 inches measured from grade shall be open to light and air over 75% of the surface area.
(D) Grade defined. The grade from which fence height measurements are calculated shall only be from either natural grade or grade modified responsive to a grading plan approved by the city; and, shall not include the height of berms or introduced increases in ground elevation that would raise the effective fence height over that which would be otherwise permitted by this subchapter, except that a combination of raised grade and fence that would exceed in sum the fence height permitted by this section may be specifically approved by the City Council as an element of a subdivision plat or commercial site plan approval establishing specific property grading and topography.

This type of definition will prevent the clever/determined homeowner from shoring up an earthen berm underneath the actual fence structure intended to increase the height of the fence.

C. Enforceability and Potential Conflicts with Other Provisions:

In order to facilitate ease in enforcement, the city may wish to consider any conflicts that may arise among chapters in its code book. Many cities may have a standalone fence ordinance as a portion of their zoning or nuisance provisions. Other cities have fencing provisions scattered throughout the code. It is important to make sure that all the fence the provisions harmonize. For example, do your general fencing requirements take into account other ordinance provisions for fencing in dangerous dogs? Do they take into account required fences for private recreational facilities such as pool and tennis courts? How about screening in industrial/commercial areas for outside storage or refuse collection areas?

You may also wish to consider (and build into your ordinance) areas where different fencing regulations may be appropriate. For example, you may consider ordinance provisions that allow:

• Residents on busy highways to build taller fences abutting the road;
• Residents near commercial or industrial uses to build taller fences;
• Agricultural districts to utilize different fencing materials.

Recognizing that a “one size fits all” approach may not work for your city when drafting an ordinance can reduce the inevitable requests for zoning variances and ease administration.


D. Conclusion

LMC has sample fence regulations in its files going back to the 1920s. As a result, I’m not so sure that the Star Tribune has identified a “bonafide” new trend in privacy fences. However, the article serves as a nice reminder to review and consider older fence ordinances. These ordinances, just like the fences they regulate, could always be spruced up with a new coat of paint.

The Star Tribune article referenced herein is available at this link:
http://www.startribune.com/lifestyle/homegarden/95161789.html?page=1&c=y

Here is a link to help you find the Lake Elmo and Apple Valley City Codes (used as samples above): http://www.amlegal.com/library/mn/index.shtml