COMMISSIONER Amanda Fritz's nearly two-year-old plan to ban malt liquor and fortified wine sales in downtown, Old Town, and Goose Hollow—a controversial bid to keep street drunks from frightening away tourists—appears to be in serious trouble.
The Mercury has learned that while the Oregon Liquor Control Commission (OLCC) could finally vote on the plan as soon as this fall, it will be without the blessing of booze and grocery industry lobbyists. Talks between lobbyists, city staff, and the OLCC regarding the shape of the ban have failed to reach a compromise—something the OLCC board is usually keen on.
But another issue is even more pressing. It's now unclear whether the OLCC even has the ability to create what would be Oregon's first so-called "alcohol impact area (AIA)." A lawyer working for a downtown 7-Eleven franchisee filed a petition arguing the move is illegal because it's not spelled out specifically in state law, and the OLCC is waiting for the Oregon Attorney General's Office to come back with a ruling.
"It's more stalling," Fritz told the Mercury, describing herself as "frustrated." "We've been working on this for months."
The Mercury first reported last fall ["On the Rocks?" News, Oct 6, 2011] that negotiations were stretching on far longer than anticipated. The city's vision targets beer containing at least 5.75 percent alcohol or sold in cans 16 ounces or larger, and wine sold in boxes, jugs, or "fortified" with spirits. (Microbrews and fancy fortified wines like vermouth are exempt). But industry lobbyists and OLCC staffers were pushing for a list of specific products that would be forbidden.
The debate re-emerged in a recent exchange of letters, obtained by the Mercury through public records requests, between Fritz and OLCC Director Steve Pharo. In a letter sent on April 30, Fritz griped that the OLCC was taking too long to make lobbyists happy and asked that the commission vote as soon as possible on the city's version of the plan.
"We thank OLCC staff for trying to find consensus, however that is not likely to occur and waiting without any discussion will not solve it either," she wrote. "For too many years there has been nothing in place and the community of downtown Portland has suffered."
Pharo sent a letter back to Fritz on May 8 that granted her wish, saying such a vote could come as soon as the end of October. The city voted to ask the OLCC for an AIA back in September 2010, and the OLCC agreed to look into it in December of that year.
"This timeline assumes that many variables will synchronize favorably," Pharo wrote. "Particularly that OLCC receives an affirmation of its authority to establish an AIA from the department of justice."
Pharo's timeline might be wishful—because OLCC officials say they still don't know when that "affirmation" might actually come.
In January, Salem attorney Nathan Rietmann, on behalf of Sandeep Parmar, owner of the 7-Eleven at SW 4th and Taylor, asked the OLCC for a "declaratory ruling" that challenged the agency's ability under state law to create AIAs.
OLCC administrative rules adopted in the 1990s, staffers say, allow for AIAs in Oregon cities larger than 300,000 people. But Rietmann says nothing in Oregon Revised Statutes spells out that power. He also argues that even if the rules are valid, Portland and the OLCC didn't follow them.
"They've just given themselves that authority," Rietmann says. "But if you take a look at the statutes, I don't think that authority is truly there."
Jennifer Huntsman, the OLCC's rules coordinator, confirmed that Rietmann's filing persuaded the OLCC to check in with the Oregon Department of Justice—just in case. She said the attorney general's office sanctioned the idea for AIAs when the administrative rules were first drafted, but that "it's old advice." Huntsman also said she has no idea when the attorney general's office might issue a finding.
"The commission became aware that industry was challenging this," she says, "so they sent the question down again."
Since then, the city has filed suit against the OLCC on another matter: its decision to grant a permanent liquor license to a food-cart pod out on SE 82nd. The city wants special rules for outdoor drinking spots, including food carts, but the OLCC has argued it's legally bound to treat carts just like brick-and-mortar restaurants. Will that help or hurt the booze ban?
"It's not directly connected," Fritz says. However, she added: "The time is right for a statewide conversation about liquor sales."