CJ has ‘no authority’ to ban public boozin’
From our weekly issue dated February 11, 2009
A proposed ordinance to ban consumption of alcohol in public spaces within Cave Junction may have to be changed in order to comply with state law.
The ordinance was scheduled to have a public hearing and its second reading at the Monday night, Feb. 9 city council meeting In Cave Junction City Hall. But City Attorney Pat Kelly said that “state law has prevented our authority” to enact the original ordinance.
“They say that alcoholism is a disease,” Kelly said. “It’s frustrating to me, but there is simply no authority for the city to do so.”
Kelly said he discussed the issue with Josephine County District Attorney Stephen Campbell and County Legal Counsel Steve Rich, and they agreed with that interpretation of the law.
However, Kelly mentioned that state law does allow for enforcement of disorderly conduct for persons blocking the sidewalks and streets.
“That’s the way it’s going to have to be enforced,” Kelly said.
Mayor Don Moore agreed that the city can better avoid potential litigation by enforcing disorderly conduct statutes.
Kelly added that if people are drinking on private property and the owner asks them to leave, the crime of criminal trespass occurs. He said that by pursuing that and disorderly conduct “we might be able to deal with it.”
Councilors did take testimony from some of the 35 people present at city hall. Real estate agent Steve Lyons said his wife had recently witnessed a man urinating on the side of a downtown building.
“Something has to be done,” Lyons said. “I can’t comprehend why anyone would oppose this kind of an ordinance.”
Bill Reid, another real estate agent, said the new version of the ordinance wouldn’t solve the problem. He suggested possibly removing some of the benches in the downtown area to discourage people from loitering on or around them.
Reid added that if alcohol is considered a disease, then perhaps public health laws could be used to prevent merchants from selling alcohol to vagrants.
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But Josephine County Sheriff’s Deputy George Gasperson said that while there are many ordinances that can be used, the intent behind disorderly conduct would have to be proven in order to ensure successful prosecution.
Kelly said that he, Gasperson and a representative from the Josephine County District Attorney’s office could come to the council’s March 9 meeting with their recommendations on how to proceed with any possible ordinances or enforcement actions.
The council also held off on an ordinance to form a Local Improvement District (LID) on Redwood Highway. Kelly said he could not find “any authority in state law” to allow retroactive LIDs for improvements that have already been funded.
Another issue, Kelly said, is that the LID is not defined as “local” under statute.
“We didn’t pay for it,” Kelly said.
Kelly also said he wasn’t sure whether it was sufficient to have property lienholders sign off on an LID, as had been proposed, because third parties could become involved through ownership changes during the foreclosure process.
However, Kelly said he didn’t get the chance to discuss the issues with Grants Pass attorney Dan Hughes, who represents the LID applicants.
Hughes said he wanted to be able to provide Kelly with some sort of a written memorandum, and the council voted 5-0 to continue the matter to its Feb. 23 meeting.
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