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May 13, 2008

Recap of Changes in DeSoto County Hours of Sale Laws

As reported earlier this week in the Commercial Appeal by Yolanda Jones and Toni Lepeska.

Hernando and Olive Branch officials recently extended hours or allowed Sunday alcohol sales at on-premise businesses such as restaurants and bars.

Here are the hours bars and restaurants in each city can serve beer, wine and liquor:

Hernando: In June, restaurants and bars can sell liquor, beer and wine from 7 a.m. to 1 a.m. Monday-Saturday, with last call at 1 a.m. and tables cleared by 2 a.m. Sunday hours will be 1 p.m. to 1 a.m.

Horn Lake: Restaurants and bars can sell liquor, beer and wine from 7 a.m. to midnight Monday-Saturday, with tables cleared by 1 a.m. Sunday hours are from 1 p.m. to midnight.

Olive Branch: Restaurants and bars can sell liquor, beer and wine from 10 a.m. to midnight, Monday-Saturday. Sunday hours are from 1 p.m. to midnight. Note:  According to my conversation with the city attorney, the new ordinance re Olive Branch Sunday sales has not yet been approved by ABC, but it is expected any day now and should be effective immediately upon that approval.

Southaven: City allows sales from 7 a.m. to 1 a.m. Monday through Saturday and 1 p.m. to 1 a.m. on Sundays,

Walls: Restaurants and bars can sell liquor, beer and wine from 10 a.m. to midnight, Monday through Saturday. Sunday hours are from noon to midnight.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

April 15, 2008

CL article about underage drinking

Here is an article by Garry Pettus at the Clarion Ledger. Underage drinking is a cause behind which it is easy to get for obvious reasons.  Oxford (due to the death of a police officer) and Jackson are leading this charge for reform.  As usual, there are some legal things in the article on which I feel compelled to comment and the article is rather lopsided in favor of more legislative oversight.  I have deleted many of the paragraph breaks to save space. My comments are in green.

Toll High in Dollars, Heartache; Series of Public Meetings Arranged

Karen Mangrum was a month shy of 22; she was tall, at least 5-foot-8, says father Jimmy Mangrum, whose wife, Ruth, wrote a book about her: When Love Overflowed. "She loved children," says Jimmy Mangrum of McCool. "Whoever Karen would've married, they would have had a houseful of young 'uns. "She was coming back home on a Saturday night from her job in Louisville. She drove two miles out of town and died." She died 12 years ago on an August night when a 15-year-old drunk from beer plowed his car into Karen's Dodge, shoehorning the dashboard, the steering wheel - and Karen - into the back seat. The wreckage filled a stretch of Mississippi 14 with Red Dog beer bottles and broken glass, but it dug "one big hole in my life," Jimmy Mangrum says.

In Mississippi, many more holes will be dug, and more lives will end - if underage drinking doesn't, community leaders and law enforcement officials warn. Many of those leaders are participating in a series of town meetings that began in March and continue this month. They're making note of the toll underage drinking takes in dollars and heartache.

"We're committed to this cause," says Tawni Lovorn of DREAM Inc., a substance-abuse prevention group for youth. The cause includes a team effort of DREAM and Mothers Against Drunk Driving (MADD) to change underage drinking laws in this state, where the minimum legal drinking age is 21. They want to add "consumption" to a law that forbids only "purchase" and "possession" of alcohol by minors, with exceptions.

As of early 2007, consumption was not specifically prohibited in about 18 states, including Mississippi, reports the Alcohol Policy Information System. It is prohibited, without exceptions, in more than a dozen - including Alabama, Tennessee and North Carolina, plus the District of Columbia. Where there are exceptions, they include drinking with the consent, or in the presence of, a family member and consumption on private property. Mississippi has a parent/guardian exception; it applies only to teens who are at least 18, and allows consumption of light wine or beer only. I've got to tip my hat to Gary here for getting this correct.  This exception in Mississippi is the most often misunderstood thing in Mississippi alcohol law.  I plan to do a post on this issue in the future.  A legal-age spouse also may furnish alcohol to a spouse who's a minor.

Many officials here say the law is too lenient. "Only slightly altering the law will give us an additional tool in the chest to discourage this very dangerous behavior," says Warren County Sheriff Martin Pace. A bill to amend the law to cover consumption died in the Legislature this year, says state Rep. Philip Gunn, R-Clinton, who worked on it. He plans to introduce what he believes will be a stronger bill in the 2009 session. The bill is patterned after model legislation from Anheuser-Busch, the beer producer with a program to rein in underage drinking and driving. Language in that proposed legislation would prohibit consumption. It would also add criminal liability for adults who "enable" underage drinking parties, including those on private property.

Gunn wants to target those "private settings." State law doesn't forbid underage possession at private locations. Nor is it banned if a parent/guardian is present and consents. Should it be??? Gunn has a personal interest in the issue: His parents and sister were killed 20 years ago by a drunken driver. "I lost my whole family in that one accident," he says.

Excluding the heartbreak, underage drinking cost Mississippi $186 million in 2005 - for medical care, work loss and more, say the latest figures provided by the Mississippi Highway Safety Patrol and DREAM.

Fatalities, access

The cost of pain and suffering is exponentially greater. Across the country, underage drinking kills about 5,000 young people every year, reports the National Institute on Alcohol Abuse and Alcoholism. Some kill themselves - in traffic accidents or suicides. Some kill others, such as the 15-year-old who survived the wreck that ended two lives on an August night in 1995: those of his mother, who was in his car, and Karen Mangrum of McCool - one of four children, a young woman who read the Bible daily and never drank, says her father, a foreign-mission evangelist. The driver's penalty is unknown because his case was handled in youth court, which is confidential in Mississippi.

In fatal crashes involving alcohol between 2000 and 2004, 11 percent of the drunken drivers were under 21, reports Ron Sennett with the Mississippi Department of Public Safety. In a town hall meeting last month, he said that 125 teens die in traffic accidents every year in Mississippi; 25 to 35 percent of those are alcohol-related.

Even kids who haven't reached puberty are reaching for a beer. In this state, more than one in three (36.3 percent) sixth- through 11th-graders surveyed in 2007 said they had used alcohol within the past 90 days. Umm, how did they vote according to their grade?  I'd bet that most of the positive responses came from the older kids.  "Underage drinking is a problem in all schools; there's no question about it," says Pat Taylor, headmaster of Jackson Academy, a private school in Jackson. "There are not a lot of things you can do to save lives, but preventing underage drinking and drug use are two of them." The usage figures are from the 2007 SmartTrack Survey sponsored by the Mississippi Department of Education. The study also found that among 11th- graders, some had used alcohol for the first time at age 13.

Whatever their age, they often buy it from convenience stores where IDs aren't checked. "If people weren't selling it to them, we wouldn't have the problem," says Jackson Police Chief Malcolm McMillin, who's also Hinds County sheriff. "That's what I want to concentrate on: people who profit from the sale of alcohol to minors."  If this is so, then why do we need legislation to prohibit parents from consenting to their kids drinking in their presence?

Sometimes minors get it from older friends. "If you want to get it, you can," says Alexandria Lee, 18, of Jackson, a Murrah High School senior. "It's like drugs." Sometimes they get it at home. "My mother is not going for it at all," says LaSail Williams of Jackson, a Jim Hill High senior. "She says there's an age for it, a time for it. But I do know some students who get it from an older brother or sister." Or someone older than that. "You pick a child up for drinking, and you ask how he got started drinking in the first place, you may find out it's his parents," says Pearl Police Chief Bill Slade. "Parents say, 'I'd rather have him doing it here at home rather than get out and drink and drive.' "But if you tell him it's all right to drink at home with his folks, do you think he's not going to go drink with his friends?" And, if he starts drinking before he's 15, Lovorn says, he's "five times more likely to develop alcohol problems than those who start at 21 or older."

Steve O. took his first drink at age 14. He's a member of Alcoholics Anonymous, the reason his full name is being withheld. By age 16, his grades in school were dropping. By 17, he was in the county jail for stealing liquor. By 20, he was driving drunk. He's been treated for drug and alcohol abuse five or six times. But he never took it seriously until three years ago, when he temporarily lost his daughters after a parental-rights hearing. "I was proud to be a daddy," he, now 37, says. "I needed to grow up."

Bobby Hilbun, Lambert Cully and Drew Keith won't grow up. In July, the three Mississippi teens died in two weeks - all from a drug or alcohol overdose. In Warren County, where Hilbun, 18, accidentally overdosed on prescription drugs, teens formed the What Up Wit Dat? Teen Coalition for a Drug Free Warren County. Fenly Akers, 18, a Warren Central High senior and coalition president, knew Hilbun and Cully. "This caught everyone's attention," she says of the deaths. "But many teens don't think it can happen to them. And I've wondered if parents realize (the scope of) the problem. If they did, I believe the drinking problem would be greatly reduced."

***

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Flowood liquor sales bill dies 

A bill that could have eventually allowed restaurants and hotels in Flowood to come out from Rankin County's ban on liquor died on the House calendar Thursday.

Under House Bill 815, 20 percent of the voters in the city could have petitioned to have a referendum to vote on whether some establishments should be allowed to serve hard alcohol.

Wednesday was the deadline for lawmakers to concur in amendments to general bills and constitutional amendments originating in the opposite chamber.

Currently in Rankin County, only beer and wine coolers can be sold at permitted establishments.

Under the proposal, liquor stores and bars would have still been banned in Flowood.

This article created somewhat of a firestorm among CL readers. At the time of this post, the comments to the CL article were nearing 100. That is a huge amount compared to the paltry number of comments on other stories. For some entertainment go check out the fire bombs the proponents and opponents are hurling at each other. You can probably guess where the dividing line is.

Now, I am no expert on legislative procedure, but here is the trouble with the article as I see it. My cursory review of the the article, the house bill and the statute it was meant to amend reveals the CL article may have missed the mark. First of all, HB 815 was not specific to Flowood or Rankin County.  HB 815 purported to amend several aspects of Mississippi alcohol law (types of permits, direct shipment of wine, etc.) Many of those same amendments are addressed in Senate Bill 2526, which I've already covered in this blog (see below). According to the legislature's website, SB 2526 is still alive as presumably so are its proposed amendments. Miss. Code Annotated 67-1-14 in its existing form already permits voters of a municipality located in a dry county to hold an election on whether the municipality can go wet. Therefore, it appears the failure of BH 815 to survive does not change any municipality's right to hold an election to go wet. In fact, The city of Aberdeen long ago voted to go wet even though it is in a dry county.

Let me clarify another thing or two. Rankin County is dry. That means "alcoholic beverages" are illegal anywhere in the county. Alcoholic beverages" mean distilled spirits and wine. Those are regulated by the State. The locality regulates beer and light wine (like wine coolers). The city of Flowood has given the OK to bear and light wine. That is how places within the city are allowed to serve those items. Nothing in the proposed legislation would have ever permitted a bar in Rankin County or anywhere else in the state. Mississippi does not allow stand alone bars. I have address that previously in this blog too so, scroll down to find that post.

If I have missed the mark regarding the effect of the legislation please shoot an email to me.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

April 9, 2008

Here is an interesting article by Sherry Lucus at the Clarion Ledger that highlights what is, in my opinion, just one of Mississippi's antiquated and arbitrary restrictions on the service of alcohol. (I apologize for the bold typeface.  My computer apparently likes it too much to permit me to change it.)  I'll try to add some comments on this issue later today.

Wine at open houses illegal, state says

Fondren's Arts, Eats & Beats event, a popular pedestrian event of open houses and art shows in the Jackson neighborhood, may do without some of its traditional spirits Thursday.

The district's businesses were put on notice that complimentary wine, long a staple of art shows and open houses there and even around the state, is illegal.

"Always has been," says Kathy Waterbury, spokeswoman for the State Tax Commission, which oversees Alcoholic Beverage Control. "When we find out about those, our agents go ... and explain to them what's going on and give them a warning.

"A lot of people don't understand that it is illegal for them to be in a business environment providing alcohol. Under the way the alcohol laws are written, a sale includes providing it to someone, not necessarily receiving money for that."

A bill now pending in the Legislature, SB 2526, addresses the issue, including provisions for special purpose permits allowing the offer and consumption of wine, beer and alcoholic beverages at certain events and places.

The bill's language covers events promoting a wide range of goals, including civic, charitable, economic development, neighborhood, artistic, music and literary for a Class 1 special purpose permit. A Class 2 special purpose permit would apply to spas, art studios and galleries and cooking schools.

The permits would require posted signs stating that no one under age 21 may be served wine, beer or alcoholic beverages.

The bill is now in committee. If passed, the law wouldn't go into effect until July 1.

For now, businesses won't be in compliance with the law if they offer wine and liquor. A civic or nonprofit foundation or an individual for-profit hiring a licensed caterer or partnering with a nonprofit may qualify for a temporary permit.

Reaction among Fondren merchants has been mixed, said Charles Richardson, executive director of the Fondren Renaissance Foundation.

"Some are more pleased than others," Richardson said. "They save the money on purchasing all the liquor, whereas others are very upset because ... serving at an open house generates business for them and brings people to Fondren, having an economic impact on the community and the city of Jackson."

The foundation has a permit to sell beer at the event, 5-9 p.m. Thursday. A portion of North State Street will be blocked off between Mitchell Street and Fondren Place.

Several restaurants in the area sell alcoholic beverages.

But other businesses are feeling the effect. "At our opening last week, we served sparkling grape juice," said Joel Brown, co-owner of Brown's Fine Art.

And at least one business, Fondren Traders, alerted customers by e-mail that they couldn't justify staying open late for Arts, Eats & Beats since they couldn't serve wine.

April 6, 2008

Clarion Ledger reports:  Woman, 75, arrested for operating a still

Agents with the Mississippi Alcohol Beverage Control destroyed an illegal distillery in Bolivar County on Thursday (4/3/08).  Bettie Golliday, 75, of the Shaw community was arrested and charged with possession of untaxed whiskey.  ABC agents executed a search warrant at Golliday's home after receiving information in the case. Agents reported seizing 36 gallons of moonshine and a six-barrel still adjacent to the home.  Conviction on a charge of possession of untaxed whiskey is a misdemeanor punishable by up to three years in prison.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 29, 2008 

Earlier Closing Times for Jackson

Gary Pettus of the Clarion Ledger reported today about a new movement in Jackson to enforce earlier closing times at Jackson establishments.  I deleted many of the paragraph breaks to save space, but the content of the article remains as printed and in black text.  In order to distinguish them, my comments are in green.  Here is Gary's article:

Every weekend until 4 a.m., customers at Pop's Around the Corner Club drink and dance to country music - but owner Jim Steverson is starting to sing the blues. The chorus goes like this: "We may have to close down," he said, "and move to Byram." Steverson, who operates Pop's on Gallatin Street in Jackson, may make good on that threat if the city adopts a proposal he says will drain his business: shutting down places like his by 2 a.m. Police Chief Malcolm McMillin is pushing for the uniform closing time for all bars and nightclubs as a crime-prevention tool; the City Council will consider a proposed ordinance soon, once attorneys have fine-tuned the language. "Mac figured if we could close them out at a reasonable hour, maybe we could cut down on the fussing and fighting at these places," said Ward 1 City Councilman Jeff Weill, who supports McMillin's proposal. "It's not rocket science." Hmm, that sounds like it might be getting close to a pretext, but such is the norm regarding the regulation of any vice or social ill.  As of mid-February, police had identified 56 Jackson establishments that stay open past 2 a.m. For now, clubs and bars in Jackson must stop selling alcohol at that hour. Many remain open later by allowing customers to bring in their own drinks - a practice known as brown-bagging.

Earlier this month, Vicksburg outlawed brown-bagging out of hand. The regulation, effective April 10, was one in a series of restrictions Vicksburg put on establishments that sell alcohol, including a controversial measure forcing bars in residential zones to close by 10 p.m. instead of 2 a.m. It's hard to say if this is a massive trend, but communities from California to Massachusetts are trying to turn off the taps earlier. In Jackson, "we hope to get something on the books by the end of April," Weill said. In all of these towns, the measures are meant to prevent late-night crime and traffic accidents fueled by alcohol. "Hopefully, we can cut down on the crimes of violence that occur in these parking lots and inside these clubs," said McMillin, also Hinds County sheriff.

This year, so far, at least four people have been shot to death outside Jackson nightclubs. Where is the connection to alcohol? Is alcohol really the cause?  It might be, but I'd like to know the facts linking these events to alcohol.  A police crackdown wasn't far behind. "For several years, there has been no monitoring or policing of nightclubs, lounges and other establishments," McMillin said. Now there is.  Hey, that might be the cause.  I've often said that alcohol regulation in Mississippi is weak, not because of a weakness in the regulations, but because of a weakness in enforcement.  That is no knock on the A.B.C. agents either.  They do a great job, but there just simply are not enough of them to effectively regulate alcohol.  Since the end of January, a law enforcement task force has swooped down on nightspots to enforce existing ordinances. "We found places without a license and some that never had a license," McMillin said. See what I mean.  Police uncovered an estimated 20-25 violations and made "numerous arrests on weapons violations, probation violations" and other offenses, he said.

But McMillin wants more, including the universal 2 a.m. closing time. "I believe if we do that, we'll notice a drop in crime - crimes of violence, in particular - quickly," he said. Not everyone is bellying up to the notion of earlier closing times, though. In some communities, including Vicksburg, the rancor has flowed like wine. "There is difficulty convincing people the rightness of these ordinances when casinos are there, selling booze 24 hours a day," said Earnest McBride, who led a protest rally Tuesday outside Vicksburg City Hall. Casinos and other establishments with resort status are exempt, a fact pointed out by McBride, president of the Vicksburg Alliance for Good Government and an editor for The Jackson Advocate newspaper.  Some might say the city of Vicksburg knows where its bread is buttered, but the fact of the matter is that the resort time of sale exemption is a state law not a city one.  Granted however, the effective disparity is difficult to resolve.

The new restrictions, he said, are directed against the black community, "which has no say-so." He asserted the new closing time for neighborhood bars is a policy that affects only Anderson's Cafe - "the oldest black bar in the city." Vicksburg Police Chief Tommy Moffett, who is African-American, denies charges of bias against black businesses. But he readily admits the new closing time affects Anderson's Cafe specifically. "It's the only neighborhood bar where the 10 o'clock closing applies," he said, "because it's the only one open."  This is a touchy issue.  On its face the new regulation doesn't appear to discriminate, but it is easy to see how Anderson's might view its effect that way.

About four years ago, owners of the city's half-dozen existing neighborhood bars petitioned for later closing hours and got them. Since then, these bars have gone under, one by one, except for Anderson's, which has a license to sell beer only. There, in recent months, police have arrested a bartender on a charge of illegal possession of liquor bottles and confiscated a handgun.

A small, greenish hatchet-shaped building with a blinking Bud Light sign, Anderson's has been a source of several complaints, Moffett said. But Charles Clark, owner of Anderson's, said none of the neighbors he's talked to has admitted going to the police. "I've talked to everyone but the lady who owns the funeral home," he said. "But, hell, no disrespect, everybody there is dead anyway." Most of the incidents at his place occurred outside, he said, "which I can't control." That includes a midnight shooting in late December, which Clark said occurred "down the street."

Moffett countered Clark's arguments: "Do we wait until the next shooting to do something to stop it?" Richard O'Bannon, his deputy police chief, puts it this way: "Vicksburg is a nice place to live, but it could be better. "Part of our goal, and the goal of government, is to give people a nice, safe place to live. "I don't need anybody moving out of Vicksburg to Madison to find that."

In Madison, restaurants can serve liquor, said Mayor Mary Hawkins Butler, but 75 percent of their sales must be for food. Frankly, I find the state's 25% food revenue requirement arbitrary and offensive.  Madison's 75% is equal part economic deterrent and extortion.  "Madison is not a party town." As with other area locations, ordinances governing alcohol sales are typically more restrictive than Jackson's. In Madison County, for instance, pool halls, clubs and other places where alcohol is sold by the drink must be closed between midnight and 7 a.m.  This is more or less the norm is most parts of the state.

For his part, McMillin doesn't foresee his proposal igniting the same charges of bias that have burned Vicksburg. "It would affect all establishments equally," he said. That's what bothers Ward 3 City Councilman Kenneth Stokes. "I like what (McMillin) is doing now in enforcing the current regulations," Stokes said. "As far as new closing times, I'm open for compromise. "But we can't lump all the nightclubs in the same basket. Just because a few have had problems, that doesn't mean we can punish ones that have never had a history of improper behavior."  I thought I might never say it, but here goes, "I agree with Councilman Stokes."

For 18 years, Pop's has had none of those problems, Steverson said. "But we have people coming here at 1 o'clock. With a cover charge, they won't come in if you close at 2 a.m. "Right now, the band quits at 3 a.m., and we stay open to 4. People stay and listen to music from the DJ; they like to stay and shoot pool. "A new closing time will hurt these people and it will hurt my business."

Serderick Lawson, who manages Sylvia's Restaurant & Lounge on Medgar Evers Boulevard, goes further: "Closing at 2 would wreck our business." At Sylvia's, which stays open until 4 a.m. on weekends, customers come in as late as 3 a.m. to eat catfish, fried trout, hamburgers and chitlins, he said. "They got their alcohol somewhere else and they come into my place to eat to soak it up." Sylvia's does sell beer, he said, "but I monitor people I serve. I turn them down if they've had too much. "So I don't have a problem with alcohol being cut off at 2 o'clock. "Just don't cut my kitchen off."

***

A note on "Brown Bagging" and selling "Set Ups"

Many people are familiar with this concept of self-service, but for those who are not I will provide a brief explanation. Some establishments cannot serve alcoholic beverages (i.e. those things that are not beer or light wine) perhaps because the proprietor cannot qualify for a permit, perhaps the permit has expired, perhaps they just do not want to bother with serving it, etc.

The best example of this of which I am aware is Lusco's in Greenwood, Miss. It is a fantastic, even legendary restaurant, but it does not have an A.B.C. permit.  I do not know the precise reason for its absence but I suspect it is because Lusco's is too close a neighborhood church and cannot get or hasn't bothered to get a waiver from the church regarding its proximity, which is a prerequisite for an A.B.C. permit.  Nonetheless, it is still possible to have a great bottle of wine or a drink with your dinner, but you must bring it yourself.  Nearly everyone does at Lusco's.  It is part of its charm.  As I recall, it is just a quick dash across the street to the Liquor Legger (presumably like boot legger???) where you can replenish your stock if you have a lively table and drain your initial supply.  This bringing in your own bottle(s) is known as "brown bagging."  Likewise, an establishment selling club soda, Cokes, and other mixers to you for consumption with your bottle is known as "selling set ups."

"Brown Bagging," which takes its name from the customary brown paper bag conspicuously concealing your bottle, is only permissible if the establish can satisfy the following requirements:

(1) The establishment does not have an A.B.C. permit. The holder of an on-premises permit must be the exclusive provider of alcoholic beverages on the permitted premises. A customer bringing in a foreign bottle would violate that exclusivity. In the case of Lusco's, it does not have a permit.

(2) There must be no local ordinance prohibiting "brown bagging." Therefore regarding Lusco's, we can infer that the city of Greenwood has no prohibition against brown bagging.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 26, 2008 

Legislature to close a loophole...and change some other stuff too...

Yesterday, the Clarion Ledger reported this:

A bill that would crack down on minors who use false identification to buy alcohol cleared the Mississippi House today.

Senate Bill 2526 would make it illegal for minors to use fake ID's to buy liquor. Current law says minors cannot use fake ID's to purchase beer. House Gaming Committee Chairman Bobby Moak, D-Bogue Chitto, said lawmakers learned about the discrepancy after the state Tax Commission told them. House lawmakers also amended the bill to permit diners to take home a bottle of wine they do not finish at a restaurant. The bill would also allow museums to have wine events. It now heads to the Senate for more work.

***

Here is a link to the original Senate Bill 2526: http://billstatus.ls.state.ms.us/documents/2008/pdf/SB/2500-2599/SB2526PS.pdf

***

Here is a link to the amendments by the House:

http://billstatus.ls.state.ms.us/documents/2008/pdf/ham/SB2526_H_Cmte_Amend_01.pdf

***

So, what does all this mean? Well, there are some interesting items buried in all that text. I cannot address them all, but there are a few that stuck out to me.

The Senate bill creates a potentially new species of on-premises permittee: the common carrier. Presumably, that means planes, trains, buses. For reasons that are entirely to complex to get into here, that should not include limousines. Given the gaming industry in the state, I wonder if limos were the target of this bill? If so, I think the legislature has missed the mark. On the other hand, it more than likely ties into the new "special services permit" directed at airplanes. Most interesting to me; however, is that the new breed of permittee would be in addition to the historically limited group of permittees, which consists only of restaurants, hotels, clubs and resorts. Note to legislators: if you are creating new permittees, how about giving your blessing to stand alone bars? That designation is long overdue, in my opinion.

There is a loophole closing provision making it a misdemeanor for a person under twenty-one (21) to present false identification to purchase alcoholic beverages. Alcoholic beverages are separately defined and do not include beer or light wine. But what about beer and light wine? Is there is no provision in the bill to criminalize the use of fake IDs to purchase beer. Don't worry. That is usually addressed at the city or county ordinance level. The legislature should beware; however, that the distinction (read: loophole) between alcoholic beverage/beer and light wine lurks in many corners of Mississippi law. In fact, I recently exploited a similar loophole. A gentleman owned a liquor store, which meant he could not sell beer, but he was charged with selling beer to a person under 21. What he actually sold (admittedly and regretfully) was a bottle of Jack. You can see where I'm going here. Because of the restrictions in place due to his package retailer's permit (again, he couldn't sell beer) and the fact that he actually sold a bottle of Jack, it was legally impossible for him to be guilty of the crime of selling beer to a person under 21.

The House amendments to 2526 are first concerned with that old legislative favorite: raising taxes. In an apparent effort to open to the state the logistical benefit of direct shippers of wine, the legislature will charge the direct shipper a sales tax of 27%. What a deal! I guess the shippers should be glad they didn't get saddled with the otherwise customary 27.5% tax. I thought the 27.5% tax was largely to fund the operation of the ABC's warehouse operations. With the warehouse cut out of the supply chain, one might think the direct shippers are due more than a measly .5% tax break, but apparently not. This goes to show you that alcohol is a cash cow for the state government and it will not willingly let go of that revenue.

The House amendments also state that an on-premises permittee may allow its patron to remove one (1) bottle of partially consumed wine from the premises. Now this is convenient for the patron (and I applaud that), but it is just plain odd when you try to reconcile it with the rest of Mississippi's alcohol laws. For decades, there has been bright line between what a package permittee could do and what an on-premises permittee could do. One of those things was that alcoholic beverages sold to a patron by an on-premises permittee could not leave the premises, hence the name of the permit. The proposed amendment blurs that line and may create future issues. For instance, will the bottle-toting patron now be potentially guilty of violating a locale's open container law? It seems so. Can the patron drink his wine on the premises of another on-premises permittee? It doesn't look that way. The latter would also mean that a patron leaving a separately permitted restaurant within a casino could not take or consume his bottle in the casino or in the hotel. So, what's he to do? Drink up I guess.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 19, 2008

This is a great example of how alcohol retailers with a well-reasoned argument and forward thinking city officials can change a rather arbitrary restriction on the sale of liquor.  Seeing that alcohol is not only a social lubricant, but also a vital economic and competitive lubricant, the City of Olive Branch will petition the A.B.C./State Tax Commission for the sale of liquor on Sundays by "on-premises" retailers (the prohibition for Sunday sales by package retailers is a state rather than a local prohibition). Unfortunately, the city declined to extend the hours of sale past midnight to 1:00 a.m., but this is definitely a step in the right direction.

Commercial Appeal Reports: Olive Branch votes to allow Sunday sales of liquor

By Toni Lepeska

Olive Branch elected officials voted Tuesday night to allow Sunday on-premise liquor sales at businesses such as restaurants.

The city will now petition the state Tax Commission for the expanded hours, 1 p.m. to midnight, but it will be at least a month before the request can be heard.

For years, liquor has not been legally sold at Olive Branch restaurants on Sundays. By ordinance, sales were limited to 10 a.m. to midnight Monday through Saturday.

Aldermen let stand the Monday through Saturday hours and added the Sunday hours. Hernando expanded its hours to Sundays earlier this month.

The decision passed 5-1. Aldermen Aubrey Coleman, Randy Cowgill, Dale Dickerson, Joyce Haslip and Maurice Wallace voted for the new hours. Alderman Stephen Benson was absent.

Alderman George Collins voted against the hours after a motion he'd made for even longer hours failed.

Collins proposed that sales be allowed 7 a.m. to 1 a.m. Monday through Saturday and 1 p.m. to 1 a.m. on Sundays -- he said to be in keeping with Southaven's hours.

"I just thought everything should be uniform," said Collins, who added about his no vote for shorter hours, "I was just making a point."

No one spoke in opposition to the request to expand hours to Sunday at the meeting, which was open to the public.

Raymond Kirkley, vice president of the Olive Branch Country Club board, made the request for expanded hours. His request, signed by about 11 restaurant representatives, asked that hours be 10 a.m. to 1 a.m. every day.

However, after the vote, he said he was satisfied.

"It's fine. We just need to stay competitive," Kirkley said.

He told the Board of Aldermen earlier of longer hours: "It helps keep the city competitive. It's pretty easy to go up to Winchester and Hacks Cross and get a drink on Sunday."

Pam Oswalt, general manager of the John Daly Grill in the Kroger shopping center, said her business does not open on Sundays because it can't sell liquor.

"The customer base is going to Southaven, Memphis and elsewhere," she said. "If I've heard that once, I've heard that hundreds of times from customers."

***

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Clarion Ledger Reports:  Alcohol sales in Flowood up to voters, Senate says

By Leah Rupp

A Senate committee this afternoon passed a bill that would allow hotels and restaurants to serve alcohol in Flowood, saying city leadership had asked for the changes to the law. A petition from 20 percent of the voters in the city would have to be presented, then voters in the city would have to vote on the issue in order for the plan to be enacted.

Members of the Senate Finance Committee authorized a strike all on House Bill 815 by a voice vote, adding in language from House Bill 1128 instead, with only a few senators saying "nay."

Currently in Rankin County only beer can be sold at permitted establishments. Under the plan passed by the Senate panel, liquor stores and bars would still be banned in Flowood.

***

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 18, 2008

Commercial Appeal reports:  Olive Branch mulls longer liquor hours

By Toni Lepeska

Olive Branch elected officials tonight will consider whether to allow liquor to be sold on Sunday and for one additional hour Monday through Saturday.

The request is being made by Olive Branch Country Club and was signed by about 11 restaurants with bars.

Hernando recently addressed a similar request and passed a resolution asking the state Alcoholic Beverage Commission to approve longer hours for liquor by the drink.

Olive Branch currently allows liquor to be sold 10 a.m. to midnight Monday through Saturday. No sales are allowed Sunday for "on-premises permittees."

The request is for sales to be allowed 10 a.m. to 1 a.m. every day.

Requests to extend the current hours in Olive Branch have come up a couple of times before in 18 years, Mayor Sam Rikard said. Those requests were shot down.

In Hernando, restaurant owners told officials they wanted extended hours to help them compete with their counterparts outside the city.

With the Olive Branch request, proponents argue the city is losing sales tax revenue because hours are shorter, but actually the amount the city would collect is minimal, Rikard said.

Rikard, who doesn't typically vote with the aldermen, did not have a prediction as to whether the Board would extend hours.

"It's a different board, a different time," Rikard said.

Stephen Benson, who is serving his first term on the Board of Aldermen, said he doesn't have a problem with extending hours, but he wants sales to begin at a later hour on Sundays.

"In the afternoon would be fine," said Benson, who noted that most of the cities already have extended hours.

"We sell beer already. Liquor is not going to be any worse."

Applebee's Neighborhood Grill & Bar and Buffalo Wild Wings Grill and Bar were among the restaurants signing the request. No one from the restaurant or the country club could be reached for comment Monday.

The Board of Aldermen meets at 6:30 p.m. in the Municipal Court building on Pigeon Roost Road. The meeting is open to the public.

***

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 17, 2008

You guessed it, whiskey. It was the nation's first excise tax.  After The Revolution, the country slipped into a depression marked by depreciating paper currency. After some rather suspect maneuvering and needing to raise revenue to fund the repayment of the nation's war debt, Congress passed The Whiskey Act of 1791. It was not well-received. If fact, it resulted in the often forgotten Whiskey Rebellion. For a detailed, well-researched and well-written examination of the players and events in this part of America's alcohol and economic history, check out The Whiskey Rebellion: George Washington, Alexander Hamilton and the Frontier Rebels Who Challenged America's Newfound Sovereignty, by William Hogeland, Scribner, 2006.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 16, 2008

What counties in Mississippi remain "dry"?

It has been a busy week down here in court and casino land. In a previous post I mentioned a number of Mississippi counties are still "dry". I did some counting and want to provide a definitive list of those counties, since I am not aware of such a list that is generally available and easy to find.

First, let's define "dry". In Mississippi alcohol parlance, dry means that it is illegal to sell, possess and consume alcoholic beverages. Alcoholic beverages are defined as liquor and wine, but that does not include beer. Down here, liquor and wine are regulated by the state, but beer is regulated by the locality. In practical application (actually impractical application may be a more accurate way to put it) that means in addition to the dry county/wet county distinction the opportunity exists for beer to be legal in some counties in which liquor and wine are not. The opposite is also true. Furthermore, there are a few additional anomalies that render liquor and alcohol legal in some locales within otherwise dry counties. Confused? Everyone is.

Here is the list with the previously mentioned anomalies noted. Unfortunately, as it would be a mammoth undertaking, I have not determined which cities and counties diverge on the beer issue. Nonetheless, here are Mississippi's thirty four (34) dry counties:

1. Alcorn

2. Attala

3. Benton

4. Calhoun

5. Clarke

6. Choctaw

7. Covington

8. Franklin

9. George

10. Green

11. Itawamba

12. Lamar--The City of Hattiesburg is wet

13. Lawrence

14. Leake

15. Lincoln

16. Monroe--The City of Aberdeen is wet.

17. Neshoba--The Choctaw Indian Reservation is wet.

18. Newton

19. Pearl River

20. Pontotoc

21. Prentiss

22. Rankin--The Jackson Airport is wet. Oddly, Jackson is in Hinds County.  Go figure.

23. Scott

24. Simpson

25. Smith

26. Stone

27. Tate

28. Tippah

29. Tishomingo

30. Union

31. Walthall

32. Wayne

33. Webster

34. Winston

Oh, I almost forgot. Some of Mississippi's 82 counties are divided into two judicial districts. That is usually a historical carry over from some previously insurmountable geographic feature like a river, which divided the county's populous. Of those counties, four (4) have split on the wet/dry issue so, they are not included in my list of dry counties. Instead, I have identified them separately.  The four (4) half & half counties are Jasper, Jones, Hinds and Chickasaw.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 7, 2008 

So, what the heck is a dram shop anyway?

In 18th century England, gin was an extremely popular drink enjoyed by the masses and perhaps most by those with the least to pay for it.  Parliament, seeing an opportunity to increase revenue on the pretext of curing social ills, passed the Gin Act of 1729 which imposed a high tax on gin. English consumers still craved the stuff, but many could not afford the new high cost resulting from the tax and that hurt the revenue of the retailers. So, to avoid paying taxes and thereby keep the retail cost of gin down, many retailers went underground. This was not unlike American moonshiners who two hundred years later began distilling their own spirits first to thwart prohibition, but later to avoid paying taxes. Anyway, the illegal English gin shops who often catered to the poor sold gin in very small quantities, sometimes even by the spoonful. A spoonful is roughly equivalent to an antiquated measuring unit called a dram. Therefore, English law enforcement types took to calling any establishment illegally selling gin as a dram shop.

Incidentally, riots in England eventually led to the lowering of the gin tax. Given Mississippi's statutorily required 27.5% mark-up on all alcoholic beverages coming into to the state, some would say we are about due for a riot ourselves.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

I'd like to open a bar in Mississippi.  How do I do it?

The simple answer is you cannot.  The reason for that snarky, startling comment is that Mississippi does not permit bars, at least in their purest form.  The more complex--and accurate answer--is that Mississippi only allows certain establishments to obtain an on-premises retailer's permit.  The very short list of acceptable permittees includes hotels, restaurants, civic clubs (Elks, V.F.W., etc.) or one of the lucky few establishments (read: casino...and yes, pun intended) within a qualified resort area.  Those are not hollow descriptors as they have very strict, objective criteria which must be satisfied before an establishment is eligible.  For instance, an establishment flimsily holding itself out as a restaurant in order obtain a permit would likely not qualify since the establishment must later demonstrate that it obtains 25% of its revenue from the sale of food.  That is an objective threshold many "bars" cannot meet and thusly it is one of the reasons why it is so difficult to be in the "bar" business in Mississippi.  Many "bars" masquerading as restaurants cannot successfully carry the expense of staff, managers, and equipment necessary to operate truthfully as a restaurant.  That is especially so when they really just want to be "a bar".  To get back the Q&A, if you want to be in the bar business in Mississippi, let's hope you also want to be a restaurateur, hotelier, casino operator or wear a fez.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

March 4, 2008

Is Mississippi really still a prohibition state?

Yes.  Prohibition was repealed nationally in 1933.  In 1966; however, the Mississippi State legislature "reannounced" prohibition as the official state law.  Luckily, someone in the legislature--who apparently liked his whiskey--had the good sense to create a statutory scheme which provided for the legalized selling and consumption of alcohol.  That statutory scheme is know as the Local Option Alcoholic Beverage Control Law.  It permits localities to "opt out" of prohibition if the measure is approved by the voters.  Of Mississippi's 82 counties, approximately 34 rejected alcohol and remain dry still today.

Feb. 29, 2008

Note:   The prior entries specifically addressed casinos, but the same rules, laws and comments are applicable to any on-premises alcohol retailer.  Generally, those include restaurants, hotels, bars, night clubs, country clubs, civic clubs, resorts and the like.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Feb. 28, 2008 

What can I do to protect my casino?

Remember, the pertinent Mississippi statutes only make it unlawful for anyone to
sell or furnish alcoholic beverages to a person who is visibly intoxicated,
under age, addicted, or black listed by A.B.C. In your defense, another Mississippi
statute should absolve you of civil liquor liability so long as you can convincingly establish that you lawfully served or furnished the drinks.

Essentially, that means:

● Do not serve patrons who appear to be visibly intoxicated.

● Do not serve patrons who habitually drink to excess.

● Do not serve patrons you know to have alcohol or drug addictions.

● Do not serve patrons you know to be insane.

● Make sure every patron consuming alcohol is twenty one years old or
older.

● If A.B.C. informs you not to serve a specific person, make sure you can identify the person and do not violate the prohibition.

Arguably, if you serve alcohol within those parameters you are not unlawfully serving
alcohol. Therefore, you are not in violation of Mississippi's dram laws nor are you at risk for civil liquor liability.

Other helpful tips to avoid liquor liability:

● Do not permit intoxicated patrons to execute markers.

● Train staff to identify an intoxicated patron and empower staff to "cut off" the patron.

● Do not permit a visibly intoxicated patron to play as it may be grounds for disciplinary action by the Mississippi Gaming Commission.

● Notify surveillance and preserve footage as needed.

● Institute a management reporting procedure for all "cut offs."

● Advise intoxicated patrons not to drive and warn them that you will call the authorities if they do.

● Only the passage of time will have a sobering affect so, guide an intoxicated patron towards a restaurant or his hotel room.

To properly protect your casino, you should not solely rely on the content of this article. Adequately training your staff on the issue of responsible alcohol service is crucial to preventing or containing your potential liquor liability.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Feb. 28, 2008 

Can a drunk patron sue the casino to recover his gambling losses?

For obvious reasons, this is a very common question amid the gaming industry. The amount of alcoholic beverages served at any casino is staggering. So much so, that it would be easy for a broke and hung over patron to conclude that the casino served drinks to him in order to lower his inhibitions which resulted in his losing more money. Like saturating casino air with oxygen, it makes for a good myth but not a good law suit.

No Mississippi court has addressed that issue so, we must turn to the other gaming states for guidance. Ordinarily, Nevada is the touchstone jurisdiction for all things gaming, but in this instance Nevada offers no help. That is because the Nevada does not acknowledge any form of liquor liability.

New Jersey is the only gaming jurisdiction that has addressed the issue of drunk patrons recovering their losses. There, a patron sued the Taj Mahal claiming the casino's service of alcohol caused him to lose. In analyzing the case, the appellate court noted the difficulty such a plaintiff would have proving the alcohol actually caused his losses because after all, sober people lose too. The court also commented upon the practical results that would likely follow if such a claim was allowed to succeed. That is to say that every player who lost would sue on the basis that the alcohol made him lose. No court wants to open that flood gate and the New Jersey court firmly held it shut. In dismissing the case, the court stated it would not extend liquor liability beyond the realm of personal injury claims. Therefore, gambling losses do not qualify. If Mississippi takes a cue from New Jersey, a drunk patron will never be able to recover his losses on the basis that he was served too much to drink.

Please beware; however, that the same protection may not be afforded to casinos who permit intoxicated patrons to execute markers and credit instruments. In those scenarios, it may be possible for intoxicated patron to later successfully argue that due to his intoxication, he lacked the capacity to form the contract obligating him to repay the borrowed money. Mississippi has no reported case on this issue either, but it has been rumored that at least one Mississippi casino was forced to relinquish its right to repayment when confronted with this argument.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Can a casino be held liable if the casino serves a drunk patron and he injures himself?

The answer is no according to the Mississippi Supreme Court. When analyzing Dram Shop-type claims, the Supreme
Court has stated that the Mississippi legislature did not intend to impose liability on the servers of alcohol when adults voluntarily consume alcoholic beverages and then injure themselves. The customary rule of thumb is that a casino's drunk patron cannot sue the casino for over serving him.

Unfortunately, that is not the end of the issue. To the contrary, it is the unsuspecting third party who is injured or killed by the drunk patron that will likely sue the casino.  For example, in the Jones County case it was not the drunk driver who successfully sued the restaurant, but rather the injured couple into which the drunk driver negligently drove his vehicle. Most liquor liability claims occur in a similar fashion. Typically in the gaming context, the casino serves a patron who is visibly intoxicated. Then, the patron drunkenly drives away and causes an accident, which injures or kills someone else. It is that injured person who often becomes the plaintiff in a suit against the casino, and it is that person to whom the casino has significant potential liability exposure.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com

Feb. 28, 2008 

What is the basis of such a claim?

Many states have a series of statutes known as a Dram Shop Act. Those Acts impose civil liability on the seller of alcohol when a third party is injured as a result of the intoxication of the buyer. Mississippi is a little different in that it does not have a "Dram Shop Act." It does, however, have a Dram Shop-like statute that imposes criminal penalties upon violators. If a casino or any server of alcohol, like a restaurant or bar, violates that statute, the violation could be the basis of civil liability as well.

Primarily, the Mississippi statute prohibits serving alcoholic beverages to a specified group of patrons. As in the Jones County case, that group includes patrons who are visibly intoxicated. That group also includes insane or mentally defective individuals, known alcoholics, known drug addicts and even specific individuals identified by A.B.C. Any person or entity that violates the statute may be criminally guilty of a misdemeanor and punished by a fine of up to $500.00 and/or six months in the county jail. A.B.C. also has the authority to revoke your alcohol permit and as mentioned previously, you may find your casino being sued for millions of dollars like the restaurant in Jones County.

Scott Burnham Hollis, Esq.

shollis@watkinsludlam.com