Editorial: Tossing the Baby Out with the Bath Water

By Becky O’Malley
Tuesday January 22, 2008

The “What Were They Thinking?” award for this week goes to whoever put together the elaborate plan for inspecting every establishment in Berkeley which sells alcohol, to be paid for by a flat fee that would have been the same for all sellers, from the little deli that sells an occasional six-pack of beer to the big grocery and liquor stores that sell hard liquor by the case. It’s not that alcohol isn’t associated with problems for some users, but the city’s plan was primarily a solution in search of a problem. And the award shouldn’t go only to the bureaucrats who put it together—the elected councilmembers who passed the measure at first reading and were geared up to finalize it last week before restaurateurs rallied to protest deserve part of the credit (or blame) too. 

First, let’s be clear that Berkeley has its share of nuisances or even crimes caused by alcohol sales, just like other urban areas. What are called “corner” liquor stores—small stores in residential areas whose main business is selling alcoholic drinks in bottles—can turn into a hangout for disreputable alcoholics if they’re not aggressively well-managed to avoid selling to the wrong people. On the other hand, small grocery stores within walking distance can be a real asset to neighborhoods if proprietors do a good job of screening their clientele. Two such establishments, the Roxie Deli near our office and the Star Grocery near my home, have saved me many miles of automobile usage for grocery purchases and never caused a moment’s grief. This is because they’re primarily in the food business, with alcoholic beverages just a sideline, albeit a profitable sideline that probably keeps the rest of the enterprise solvent, and because their owner-operators are always on the job. 

The other group of problem alcohol buyers who need some form of protection is minors. Binge drinking by college and even high school students is reported to be on the rise. When I was an undergraduate it was illegal to sell alcohol within a mile of the UC campus, but as the campus has metastasized to cover large areas of Berkeley and even Oakland, Albany and Richmond that’s no longer practical.  

The primary control method for these drinkers is the same as for unruly adults: The seller needs to be careful who’s buying. But wily collegians long ago figured out that the way around this is to send a qualified older person in to buy the booze, which is then consumed in the privacy of a frat house, dorm, or (increasingly) a downtown condo. At Tuesday night’s council meeting, one restaurant owner who’d grown up in Berkeley disclosed the method of choice he knows about: a fellow named “Smitty” who hangs out in front of a chain drugstore, and who’s always willing to buy a six-pack for anyone willing to pay a suitable fee up front. We can’t expect restrictions on sellers to easily end the problem of underage consumption. 

There has never been a serious documented allegation that restaurants which allow food patrons to purchase beer and wine with their meals have created any kind of problem in Berkeley. Even bars—where the main business is alcoholic drinks by the glass, with or without a bit of food—are not usually associated with neighborhood complaints. Bar owners are justifiably wary about making the mistake of selling to an underage or intoxicated person because they are regulated by the state’s Alcohol Beverage Commission, and they could get their license pulled for lapses.  

At Tuesday’s meeting, the discussion of where complaints about establishments selling alcohol originate was a perfect illustration of the simplistic reasoning that went into drafting the ordinance. The fees are supposed to go to setting up an elaborate inspection bureaucracy. Restaurants are supposed to be checked three times a year, stores just one, though the reasoning for the differential was not made clear.  

A city employee contended that more restaurants were cited annually for violations than stores, which was his justification for charging all the same flat fee. Councilmember Wozniak (scientifically trained) pointed out that this figure was meaningless unless you took into account how many restaurants versus how many stores there are in the city, and also whether a few repeat offenders were skewing the statistics. 

On the checklist are multiple items obviously generated by the now thoroughly discredited “broken window” theory of crime prevention. Do you have any graffiti? Any broken windows? Well, then, you must have an alcohol sales problem. There’s no data offered to support this concept, however. 

And whatever is the point of inspecting genteel restaurants like La Note on Shattuck (French cuisine with a pricey winelist) or The Musical Offering (a classical recording store with a tiny cafe counter and wine by the glass) three times a year to see if they have any graffiti on the premises, or if their windows might be broken?  

Penalizing establishments which do suffer from taggers is a classic case of blaming the victim anyhow. The Planet’s office is in a somewhat gritty stretch of Shattuck south of Ashby, and we have a terrible time keeping the graffiti off of our newspaper distribution box right by our front door. There’s an anecdotal tale making the rounds of a small non-alcohol-serving restaurant which got a stern warning letter from the city because owners failed to notice and paint out a two-inch tag which was on the side of their building under a drainpipe.  

A major focus of proprietors’ complaints was the requirement that each and every individual who sells alcohol to the public receive four hours of training. Anna De Leon, who owns Anna’s Jazz Island, estimated that she has 20 part-time servers who would need the special training. When you figure in their hourly pay plus the fees, it would come to $2,500 a year, a hefty hit in an industry where profit margins are tiny. Now bar owners, per state ABC rules, get themselves trained and train their employees, and it’s a system which works just fine. It appears that councilmembers, having finally come to their senses, will dump this part of the program. 

Clubs like Anna’s and our many world-renowned restaurants are major assets for Berkeley’s economy. Jazz fans like me know that it’s the liquor that pays for the musicians, even though Anna has diversified into offering food and other beverages for non-drinkers. As more and more small shops go out of business or move to the malls, it’s food that defines Berkeley’s ground floor retail, and it’s the profitable beverage component that keep many restaurants afloat.  

This whole episode is one more case of the civic nanny thoughtlessly tossing out the baby with the bathwater. Berkeley has more than its share of Carrie Nation wannabes who think that if they don’t like it, it must be banned.  

Just two examples: I stopped smoking 40 years ago, I wrote a prize-winning article about the dangers of cigarettes in 1980, the paper doesn’t accept cigarette ads, but I think that the part of the Public Commons ordinance that blames cigarette smokers for street behavior problems is foolish. So is the rule that says street trees must be pruned up to eight feet above the sidewalk, presumably to accommodate any eight-foot-tall pedestrians we might have. There are many more foolish regs like this which scarce city funds are spent to enforce.  

There’s a general legal principle that regulations should be rationally related to the problem they’re supposed to solve, but it often seems to be ignored by Berkeley bureaucrats. The restaurant inspection ordinance looks like yet another case of city employees with too much paid time on their hands making work for themselves, and it should be remembered when tax increases are proposed.