Reality on the Rocks

Fighting public drunkeness by banning certain beverages in certain neighborhoods isn't working. Undaunted, City Hall wants to expand restrictions.

On June 29 at City Hall, the Washington State Liquor Control Board held a public hearing on the success—or lack thereof—of the city of Seattle's alcohol impact areas (AIA), which place restrictions on the sale of select brands of cheap beer, malt liquor, and fortified wine in neighborhoods that are thought to have problems with chronic public inebriates. Jordan Royer of the mayor's office asked the liquor board to approve a city plan to make mandatory a pair of previously voluntary AIAs, in the University District and what the city calls the Central Corridor—downtown and surrounding areas, roughly.

In making its case, the city admitted that both the currently mandated Pioneer Square AIA and the voluntary AIAs have essentially been failures. "We have really not seen the progress we'd hoped for," testified City Council member Tom Rasmussen. Interestingly, however, the city cited these failures, and widespread refusal of booze vendors to sign voluntary Community Good Neighbor Agreements, as justification for expanding regulatory reach. If history's any indication, the liquor board will oblige. In 2003, the board granted the city's request to elevate the status of Pioneer Square's AIA from voluntary to mandatory, despite the city's concession that voluntary implementation in the area proved to be a dud.

Royer said that Community Good Neighbor Agreement participation rates in the voluntary AIAs are around 30 percent, and he summarized vendor opposition thusly: "Why should I comply when the guy down the street can not comply and get all my business?" In reference to Pioneer Square, he blamed that AIA's failure on the boundaries being too small—that chronic public inebriates could simply walk up the road to score their forbidden hooch.

To this end, the city has asked the liquor board to ban brands including Busch Ice, Rainier Ale, Mickey's, King Cobra, and Red Dog within the proposed alcohol impact areas.

Two gentlemen, Matt Fox and Ben Schroeter, spoke in opposition to the city's proposal, which was generally supported by those in attendance. "Not everybody who buys these products is a chronic public inebriate," said Fox, head of the University District Community Council. "In the U District, I've seen people in line all the time with these products who are working stiffs and poor people who have nothing to do with these problems." Added Schroeter, a reformed substance abuser: "The problem I have with the AIA is it doesn't do anything to help the alcoholic whatsoever. It has to do with issues of race and class. Certainly, most of the people who consume these beverages are law-abiding citizens." The city points to programs such as the Downtown Emergency Service Center and 1811 Eastlake, a "wet house" where chronic drunks can crash, as evidence that the AIA is only one piece of a comprehensive approach.

But problem-solving aside, does the state even have the power to allow this? An issue that has yet to be debated is the constitutionality of this relatively new strain of inebriation regulation, the municipal pioneers of which include Tacoma and Washington, D.C.

Costco recently won a victory over the liquor board in a bid to ditch the state-mandated three-tier distribution system, which added what the company regarded as unnecessary markups by middlemen (see Buzz, April 26, and Sips, "Down by Law," July 6, 2005). In U.S. District Court, the Issaquah-based discount retailer invoked the Interstate Commerce Clause of the Constitution as a way to trump the 21st Amendment, which gives states the power to regulate alcohol, and a judge found in favor of Costco, citing the board's different rules for in-state and out-of-state bottlers. That's one approach a canny constitutional lawyer might use to fight alcohol impact areas.

Another issue is the equal protection afforded by the Constitution's 14th Amendment, which guarantees an individual or entity the same liberties as the guy across the street, town, or country.

"It is well within the liquor board's power to [ban the sale of] Wild Irish Rose or fortified wine," says local attorney Dave Osgood. "This is why you don't have Everclear in Washington state. The Liquor Control Board has the power under the 21st Amendment to either allow or not allow any of the brands to be sold, statewide. But in this post–Costco v. LCB climate, the LCB would probably lose eventually."

And what of the 14th amendment, which case law supports as trumping the 21st Amendment? "Equal protection has different levels of scrutiny," says Osgood. "If you're basically arguing that you're being discriminated against on the basis of race, sex, etc., you've got strict scrutiny, and the court looks at these rationales seriously. If you're not being treated fairly, they apply what's called a rational basis test—is there any nondiscriminatory basis for the city's action? And what they'll say is they've shown that the problem with chronic public inebriates is more serious in the downtown office core than, say, Wedgwood. It's very difficult to prevail when you're challenging a government action under rational basis. But even under a rational basis test, one can win if it can be shown that the board is acting arbitrarily."

"It certainly sounds like a [protection] racket," says Radley Balko, a D.C.-based policy analyst. "But it's tough to find many people who will defend a homeless man's right to drink. Unfortunately, it's the kind of proposal that unites the moral right and the temperance left."

Balko, who works for the libertarian Cato Institute, is the author of Back Door to Prohibition: The New War on Social Drinking, which seeks to debunk piecemeal regulations (including certain states' drunken driving laws) that, in his opinion, unjustly impede the liberties of law-abiding citizens when their purported intent is to drill down on chronic scofflaws and abusers. For Balko, regulations such as AIAs create a slippery slope toward a booze Armageddon—and he cites a 1925 passage from the great H.L. Mencken to back his play: "None of the great boons and usufructs that were to follow the passage of the 18th Amendment (i.e., Prohibition) has come to pass," wrote Mencken. "There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished."

Agrees Balko: "Such policies place the external costs attributable to a small number of alcohol abusers on the large percentage of people who consume alcohol responsibly. Those efforts didn't work when enacted as a wide-scale, federal prohibition, and they are also ineffective and counterproductive when implemented incrementally."

Lisa Daugard of the Defender Association, a not-for-profit organization of lawyers that provides free public defense representation to the poor, favors a more comprehensive approach toward dealing with street drunks. Yet her distaste for AIAs runs concurrent to Balko's.

"An approach that focuses on erecting barriers that every alcoholic in history has found ways to overcome is a little bit of a blind alley," says Daugard, a supervising attorney with the association. "At the same time, unlike some municipalities, Seattle has led in the provision of wet housing—and usually the fallacy of public policy like this is you don't engage in harm reduction. But people who strongly desire to drink will drink."

Counters Rasmussen, the AIA's chief City Council cheerleader: "I don't disagree with her in terms of how actively the alcoholic will seek to drink," he concedes. "But what we're concerned about is the neighborhoods. A large number of inebriates are drawn by the cheap beverages they can get. There may be dispersal" of drunks over a broader area if the expanded AIA restrictions are approved. "And sometimes, dispersal improves the conditions where they've had a very serious impact, but doesn't cause a substantial problem in neighborhoods [the drunks have] moved to. So there may end up being no significant impact in any one neighborhood."

Jim O'Hallaran, president of the Roosevelt Neighborhood Association, is cautiously optimistic that Rasmussen's prophecy will bear fruit. Roosevelt shares a border with the expanded U District AIA. Martin Powers, however, president of the Wallingford Community Council, isn't so confident. "We are concerned that the AIA will result in more public drunkenness in the Wallingford area," says Powers, pointing to the U District AIA's western border of Latona Avenue. "I have to believe that there is a better solution than setting up these AIAs, which seem to remove the public inebriation problem from one area to the detriment of the adjoining neighborhoods. Is this an example of responsible leadership?"

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