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Lawmakers intend to give liquor-control commissioners the authority to close meetings while they decide what type of businesses get coveted liquor licenses.
The provision, tucked away in the comprehensive liquor package passed earlier this week by the Legislature, also would allow commissioners to award permits to restaurants over bars, favor local applicants over out-of-staters and turn down a business if they don't like its entertainment.
"We did not ask for this legislation and our meetings will remain open," said Sam Granato, chairman of the Alcoholic Beverage Control Commission. "This shows how much these people are out of control. This is George Orwell's 1984."
A host of First Amendment attorneys and academicians also is raising questions about the legislative action.
After 35 years of closed meetings, Granato opened board discussions to the public last April. The change came at a time when liquor licenses were so scarce that the board began rationing the permits, which are issued in a quota system based on population.
Sen. John Valentine, who sponsored the closed-meeting legislation, said the provision was prompted by a legislative audit criticizing the commission for conducting closed meetings in violation of the Utah Open Meetings Act.
So Valentine, R-Orem. decided to make closures legal "because much of what is discussed is proprietary information that should not be made public." He said the provision also details the criteria that commissioners may use in deciding who gets a liquor permit.
Commissioners to this point use only some of the standards set forth in the legislation. For instance, they have put weight on how long an applicant has waited for a permit, on new owners who have purchased an existing business and on whether a business has prior liquor violations.
Additional criteria would allow commissioners to consider an applicant's "projected alcohol sales," and the "nature of entertainment the applicant proposes." There's also a category that could favor "whether the applicant is a small or entrepreneurial business that would benefit the community in which it would be located."
"This moves pay-to-play from the highways to the local bar," attorney Pat Shea, who specializes in the First Amendment and is a constitutional law professor at the University Of Utah, said of the legislation.
Çivil rights attorney Brian Barnard called the provisions "questionable, which could lead to a legal challenge."
"To close a meeting to hand out licenses is a red flag. You're dealing with people's livelihoods," he said. "For a government entity to make those decisions behind closed doors is offensive to ordinary people. ... There is no accountability."
Some also worry that the closed meetings could raise questions about temptations to lawmakers, who could quietly lobby for friends or contributors desiring liquor permits. The broader legislation would allow businesses to sell existing licenses, which in other states has raised of the price of a single liquor permit to hundreds of thousands of dollars.
The legislation, awaiting Gov. Gary Herbert's signature to become law, also gives state senators more power over the liquor commission.
SB314 would strip the panel of its authority to elect a chairperson, putting the responsibility into the hands of the governor with the consent of the Senate. Their approval also is required before the liquor department's executive director could be hired.
"It's troubling that we're starting to create both an ability to go into closed meetings and a laundry list of things people can talk about behind closed doors," said Joel Campbell. "It's an open season on allowing people to talk about issues and giving them protections when we have no idea who is lobbying whom on who gets a liquor license."
The closed meeting provision comes on the heels of Herbert signing HB477, which drastically restricts public access to government records and legislators' communications.
"Closed meetings of the [liquor] commission seem to be consistent with the overall tenor we've gotten from the Legislature," said attorney Richard Golden. "It's about shutting out public access and knowledge to what's going on in our government."
How would an alcohol permit be allowed?
Criteria the liquor-control board may be able to use behind closed doors to grant alcohol permits:
How much liquor the establishment would sell.
The kind of entertainment offered.
How many permits an applicant already holds.
Whether the business is small and local.