Downtown Fights Back
Bar owners are pooling their resources to battle increased pressure on their businesses and their patrons
By Marisa Demarco
When all the Downtown bar owners get together to hire a lawyer, you know something’s up.
It just got to be too much, says John Montoya, owner of the District Bar and Grill in Downtown Albuquerque.
Significant changes on tap for the rules governing New Mexico liquor licenses would make it easier for bars to lose their licenses. Couple that with increased enforcement of the law banning liquor sales to intoxicated people and the state’s Special Investigation Division (SID) Breathalizing Downtown club-goers, and Montoya really began to feel the pressure.
A nonprofit merchants’ association (the Downtown Alliance) that represents all liquor license holders in the area hired a lawyer two weeks ago to protect business. "It seemed the sensible thing to do," he says. "It is apparent that it is a selective enforcement issue. It's not one or two or three bars. It's the Downtown area that's being targeted. We needed one person to represent all voices." Montoya wouldn't reveal who the lawyer is at this time.
The proposed changes to the Alcohol and Gaming Division's regulations include: giving the division's director the option of yanking a license if the bar is deemed unsafe for the community; employees and license holders would not be allowed to be drunk on the premises or to drink while on duty; if a person blows a .14 on the Breathalizer, it can be assumed he or she was drunk when purchasing a drink one or two hours earlier; four violations—instead of five—of serving to a minor or an intoxicated person in a 12-month period could result in a revoked license.
The Alcohol and Gaming Division is required to give notice of public hearings if it's changing a regulation, according to Montoya. But he says he wouldn't have known about stiffening penalties if another bar owner, who happened to be in Santa Fe on personal business, hadn't seen the notice posted on the division's door. Despite repeated phone calls, the Alcohol and Gaming Division was unable to comment as of press time.
To Blow or Not to Blow
As reported in the Alibi, SID started giving Breathalizer tests to patrons earlier this month, usually on the sidewalk outside an establishment, to help determine if a bar is serving intoxicated people. The trouble with fining bars for serving to a drunk person is that the process is too subjective, says Montoya. According to Peter Olson, communications director for the Department of Public Safety, the Breathalizer reading is not required in order to slap a server or a bar with a citation. Instead, the law only requires the SID agent to witness someone serving a drink to a customer exhibiting signs of being drunk. "Waitstaff and bartenders are professionals," Olson says. "They should, of all people, know what somebody looks like when they're drunk."
And if patrons can hold their liquor without appearing drunk, regardless of their blood-alcohol level? They won't look drunk to the SID agent, either, he says. Counting the number of drinks a person’s had is one way for servers to keep track, Olson suggests. He understands that in a bar-hopping situation, often the case Downtown, tallying beverages might not be an option. Still, he says, "if they're displaying the behavior and traits [of an intoxicated person], that should be a warning."
Civil rights attorney Larry Kronen has at least one concern about the Breathalizing procedure—people might not know the test is voluntary. According to Olson, there is no penalty for refusing a Breathalizer test, provided you are not driving or engaging in an illegal activity. However, Kronen argues, "most people reasonably feel that they don't have a right to refuse an officer on the street telling them they have to do something."
Bar owner Montoya says it's the rule itself he has a problem with. "I don't agree with the sales-to-intox law at all. It makes no sense,” he says. “The last time I checked, we were not in a prohibition period." Montoya adds that it seems law enforcement agencies are coming down particularly hard on the Downtown area. "Prove to us that you are enforcing these laws in every Chili's and TGI Friday's and with corporate licensees,” he says, “and we really won't have a problem."
Olson acknowledges there has been an increase in the enforcement of the law banning serving liquor to intoxicated people, but says it stems from a long-standing battle against drunken driving. According to Olson, the state has been tougher about alcohol-related law enforcement all over New Mexico since 2003. "We have focus areas," he says. "Downtown has been a place of high activity. There are more bars concentrated there. It's not the focal point. It's a focal point."
The Downtown bar scene is a cluster of mom-and-pop joints, local family-owned businesses that don't have the resources to defend themselves legally, unlike a national franchise, says Montoya. Breathalizing is hurting his business. "Since this has happened, we're all looking at a 30 to 40 percent drop in revenue in the last three weeks."
Montoya and other bar owners speculate that the squeeze was put on bars because the residential lofts Downtown aren't moving well, and investors are looking to blame the clubs. "The first thing that would pop into their head is nightlife," he says. Brian Morris, vice president of the Downtown Action Team, wants to make sure bar owners know there has been no attempt by the team, the city or anyone else to put them out of business.
Morris chalks the whole thing up to growing pains and bad communication. There is a way for a residential area and urban nightlife to coexist, he says, and it requires a bit of evolution and maturity on everyone's part. He says the Downtown Action Team and bar owners welcome SID and are glad to have agents around to make sure people obey the rules. Still, "the Breathalizing was kind of new to all of us."
Morris believes bar owners want to have a positive relationship with SID but agrees that Downtown is targeted more often than other areas of the state. "There's more pedestrian traffic," he says. "You've got five to seven thousand on a Saturday night converging on the street at the same time." Still, he feels it's important rules are applied equally and evenly across New Mexico.
Nightlife is one of many vital components in the master plan of Downtown's revitalization, according to Morris. It's important to have all kinds of development—residential, entertainment, office space—to be successful. "There's got to be a balance." Everyone wants the law to be enforced, he says, but "when it's undercover and people have to look over their shoulders, it becomes an aggressive environment."
Breathalizer tests are voluntary, according to Peter Olson, communications director for the Department of Public Safety. There is no penalty for refusing to take one, provided you are not driving or engaging in an illegal activity, he says. Additionally, you are not required to tell an agent of the state's Special Investigation Division who last served you.
Proposed changes to the rules and regulations governing New Mexico liquor license holders:
• Would give the director of the Alcohol and Gaming Division the authority to not renew a liquor license if there is "evidence that continued operation of the liquor license by the licensee at the particular location will be detrimental to the health, safety or welfare of the local community."
• Instead of a liquor license being revoked after five offenses of serving to a minor or to an intoxicated person in a 12-month period, only four will be required. The director can consider "mitigating circumstances" when deciding whether to revoke a license.
• If a Breathalizer determines that someone has a blood-alcohol content of .14 or higher within one or two hours after purchasing a drink, it can be assumed that the purchaser was intoxicated at the time of the last sale.
• "No licensee, agent, lessee or employee of the licensee" will be allowed to consume alcohol while on duty or be "present on the licensed premises while intoxicated."
These changes will be considered by Alcohol and Gaming Division Director Gary Tomada after July 10, according to the division’s website. To check out the rules and regulations in full, visit www.rld.state.nm.us/agd.
There will be three hearings regarding the proposed changes to the Liquor Control Act.
Wednesday, July 5, 8 a.m.: Bank of America Theatre in the National Hispanic Cultural Center, 1601 Fourth Street SW.
Thursday, July 6, 8 a.m.: Las Cruces Public Schools Board Room at the Las Cruces Public Schools Administration Office, 505 South Main.
Saturday, July 8, 5 p.m.: Rio Grande Conference Room at the Regulation and Licensing Department, Tony Anaya Building, West Capital Complex, 2550 Cerrillos.
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