The Berea City Council voted unanimously to table an ordinance that would prohibit the sale of alcohol of city property.
Teresa Scenters initially kicked off Tuesday’s discussion of the proposed ordinance by citing KRS 222.202, which explicitly prohibits drinking alcoholic beverages in public places. “I think that alone should give us reason to pass this legislation tonight,” Scenters told council members.
However, the issue proved to be less clear-cut as the discussion unfolded. Berea Police Chief Jason Hays said that, according to his understanding of how that section of KRS is interpreted, the law is subject to other statutes that allow for exceptions, such as when a licensed vendor has obtained a permit to sell alcohol at a public event.
Additionally, Councilman Steve Caudill noted that some properties are not city owned, but are instead leased, such as the Berea Park Annex and Memorial Park. While he said he would be in favor of banning alcohol in actual park spaces, such as playgrounds, the pool, baseball, the soccer fields, and the football stadium, the current ordinance might be unenforceable on city leased land.
“I think we’re setting ourselves up to have a lot of problems,” Caudill said. “By voting something into law where we don’t know the answers, that is bad policy.”
When asked if the ordinance would apply to city leased property, such as the Berea Park Annex, City Attorney Jerry Gilbert said he couldn’t offer a legal opinion until he reviewed the terms of the city’s lease with Berea College, along with other issues. The Berea Park Annex is under lease from Berea College for 99 years, Caudill said.
Because of the unanswered questions, Caudill said voting on the ordinance before those issues are resolved would be inviting trouble. As such, he moved to table the proposed ordinance. “If we pass this ordinance, we’ll pass an ordinance that does not have the intention that we were going after and therefore I recommend we table this,” Caudill said.
When the vote was cast to table the item, Caudill, Katie Startzman and Jim Davis voted in favor. Ronnie Terrill, Cora Jane Wilson, Teresa Scenters and Jerry Little voted no. David Rowlette was not in attendance at Tuesday’s meeting.
In a move to address Caudill’s concern, Jerry Little offered a motion to amend the ordinance to include city leased property, which was approved when Terrill, Wilson, Little and Scenters voted yes. Caudill, Startzman and Davis voted against the amendment.
Caudill persisted, however, suggesting that approving an ordinance without knowing precisely where it is enforceable would be irresponsible.
“I would like to know corporate counsel’s opinion on that, and I’m sure that Jerry [Gilbert] is not able to give that on a moment’s notice in terms of whether or not we have the legal authority to create restrictions on ABC laws on land that we don’t own. That’s what I’d like to know from corporate counsel,” Caudill said. “I think we’re making bad policy.”
Little, who opposed the initial motion to table the item, introduced a second motion to table it, citing the need for more information before the council can go forward.
“We need to know if we’re making a legal vote,” Little said. “The reason we’re doing this [tabling the item] is to find out if it’s legal or not.” Caudill seconded that motion and it was adopted unanimously, setting it aside until a future work session.
Startzman, who could potentially stand to lose business if alcohol is sold elsewhere in the city, maintains that the aim should be to encourage attendance at art fairs, festivals, concerts and food truck gatherings. “I’m in support of anything that creates more energy, momentum, visitors and events in Berea, and I think serving alcohol at public events would contribute to the overall experience for tourists and locals,” Startzman said after a recent work session on the subject.
On Tuesday, Startzman disagreed with the interpretation of that specific line of Kentucky law prohibiting alcohol consumption in public, stating it has to be interpreted in context, including provisions for exceptions. She expressed her frustration with the discussion. “We’re going to be spending hours and hours more of taxpayers time and money to be dealing with this,” she said.
Mayor Bruce Fraley said officials will benefit by allowing corporate counsel the chance to explore the ordinance further, while asking Chief Hays, and the city’s ABC administrator to go through some of the legalities. “I think it would be a worthwhile exercise to discuss this in a work session prior to bringing it back to the floor,” Fraley said.
When it came time for citizen comments, Jacque Bowling pointed out that Kentucky law prohibits drinking in public, whether it is on city property or not. “I think if you don’t pass this ordinance, you will find that you have more problems than if you don’t pass it,” Bowling said.
Hailey Howard disagreed, noting there are exceptions around Kentucky where alcohol is served at public events. Howard addressed concerns that the city might be held liable if there is an alcohol-related incident, stating her understanding that it is the vendor or licensee who is liable, not the city.
“I’m really happy to hear this being tabled so that more information about the legalities of it can be learned about by this counsel,” Howard said. “As someone who has worked in the alcohol industry for many, many years now, there is event licensing that allows you to obtain a license to sell alcohol.”
Steve Davis, who is a recently declared candidate for Berea City Council, thanked the council for the civil tone of the discussion. “I just want to thank for council tonight for handling a difficult situation where there were differences of opinion among you, and you came to consensus to look further into the matter that has some legal issues involved,” Davis said. “I just appreciate the fact that you guys work together. It’s good to see that in our community.”
Shane Morris, who raised questions about the enforceability of the proposed law, said watching the council’s attempt to reconcile the two viewpoints should be informative.
“This plot has greatly thickened here,” Morris said. “It’s going to be very interesting.”
City of Berea, KY 