New Orleans City Councilman JP Morrell has temporarily deferred a proposal he sponsored that would allow the city to withhold liquor licenses from bars determined to be “contributing to, facilitating, or otherwise complacent” about “criminal activity surrounding the establishment.”
The resolution, pitched as a crime-fighting measure, would have set up a task force including the New Orleans Police Department and the Louisiana Office of Alcohol and Tobacco Control to identify “problematic” alcoholic beverage outlets. The Department of Safety and Permits would be prohibited from issuing alcoholic beverage outlet permit renewals to those outlets.
But the resolution didn’t establish clear criteria for when a business should be labeled as “problematic.” And there are questions about the city’s legal ability to shut down businesses through a purely administrative, rather than judicial, process.
The resolution faced pushback from some community and industry groups. Ethan Ellestad, executive director of the Music and Culture Coalition of New Orleans, told Verite last week that he was worried the task force could be used to arbitrarily shut down alcohol vendors and would have a larger impact on smaller, less-resourced businesses without legal representation or political connections.
Morrell now says he is temporarily putting the resolution on hold while he worked with Ellestad to explore how it could be improved.
“We are pleased that Councilmember Morrell immediately understood and is receptive to our concerns,” Ellestad told Verite in a statement. “We look forward to a productive conversation to ensure that robust safeguards are in place that project the rights and wellbeing of all individuals and communities before further action is taken.
The council is still moving forward with a separate “chronic nuisance” ordinance that would create new civil penalties for establishments that are routinely mixed up in drug or violent crimes, including shutting them down for up to two years. However, that proposal contains specific language as to what would qualify a business as a nuisance. And the consequences for being a nuisance property would be imposed by a court, rather than a city department.
The council’s Community Development Committee on Monday (Jan. 30) endorsed the chronic nuisance ordinance, which now moves to a full council vote.
Last week, Morrell characterized the two proposals as related, saying the city would work with the task force to identify chronic nuisance businesses. But on Monday, Councilwoman Helena Moreno, who sponsored the chronic nuisance ordinance, worked to distance it from Morrell’s task force resolution.
“There’s been a lot of discussion and media articles about another resolution dealing with ATC and closing bars. I want to make sure there’s a clear understanding that this ordinance is not targeting any specific type of business,” Moreno said. “We wanted to make sure as we did this we created very clear rules for enforcement and that there was also a very strong due process element of the ordinance. Because if you lack in that, that in my opinion would have been problematic.”
The ordinance was also endorsed by interim NOPD Superintendent Michelle Woodfork at Monday’s meeting.
“I think these types of ordinances are absolutely necessary,” she said.
‘I think you need to have judicial oversight’
Aside from community opposition, there also appear to be legal barriers to passing Morrell’s resolution. As currently written, the city’s Department of Safety and Permits would be prohibited from issuing new liquor licenses to any business identified by the task force unless its operators submit a “task-force approved plan” to address quality of life issues in its vicinity.
According to City Council lawyer Adam Swensek, the city may not have the ability to shut down alcohol vendors through the city’s permitting process as laid out in the task force resolution.
“There’s a whole bundle of cases and case law that says that we can’t, at an administrative or departmental level, impose requirements or deny permits to someone who otherwise meets the face of the requirements set forth in law,” Swensek said at the Monday committee meeting.
Decisions to pull liquor licenses are typically made by the Alcoholic Beverage Control Board, an appointed board that hears cases and appeals from business owners facing revocation or non-renewal of their licenses.
The resolution wouldn’t create any new requirements for alcoholic beverage outlets in city law. Swensek argued that the city can’t necessarily withhold permits based on rules that aren’t established in law for businesses that otherwise meet the city’s legal criteria for obtaining those permits.
But Swensek argued that the chronic nuisance ordinance was different. It would create a new section of the city legal code to create new penalties for properties found to be causing persistent health and safety issues. The law would define a “chronic nuisance property” as one that “on three or more separate occasions within a one-year period” was used to do drugs, manufacture drugs, distribute drugs, conduct gang activity or illegally store guns, stolen property or drugs.
The NOPD would be responsible for reviewing evidence and deciding if a property should be classified as a chronic nuisance. The owner would then have the chance to work with the NOPD to create a plan to abate the alleged nuisances. If they fail to respond or come up with an adequate plan, the issue would be referred to the City Attorney’s Office, which could then decide to move for civil penalties against the property owner in court. Those penalties can include fines as well as prohibiting the property owner or the property itself from holding an occupational business license for two years.
One key difference between the chronic nuisance ordinance and the task force resolution is that a court would have to decide whether to punish the business, rather than the city’s Department of Safety and Permits.
“I think you need to have judicial oversight over it,” Councilwoman Leslie Harris told Verite. “Putting this in the court’s hands allows for judicial, impartial oversight.”
The ordinance also lays out the criteria for what activities will get a business in trouble.
“We’re only dealing with very serious offenses, with violent offenses,” Moreno told Verite. “And I think that’s the reason why I haven’t received pushback from the [Louisiana Restaurant Association] or [the Music and Culture Coalition of New Orleans].”
Moreno also stressed that the intent wasn’t to shut down a bunch of businesses. She said that the law was being drafted based on similar chronic nuisance laws in other cities. Moreno and Harris recently took a trip to Baltimore, which has a similar law, to see how it works. The two met with Baltimore Police Commissioner Michael Harrison, who was the NOPD Superintendent from 2014 to 2019.
Moreno said that Harrison could only recall one instance where the law was used to actually shut down a business. Moreno said that most of the time, the threat of legal action was enough to get a business in line.
“It’s very rare that anyone actually gets shut down,” Moreno said. “But just the initial contact from the chief and the meeting with the chief and his team to come up with an abatement plan usually ends up solving the problem. That’s a really key point here. It’s not about shutting down businesses, it’s about trying to come up with solutions.”
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