BOULDER MEN FIGHT TOWN FOR RIGHT TO SELL ALCOHOL

BOULDER -- At the top of a double-downshift grade, along one of the most
scenic highways in America, sits the town that some locals have nicknamed
``Little Bosnia.'' That's because Boulderites always seem to be arguing or
fighting about something, whether it's water, land, cows, construction,
zoning, religion or the weather. In the Old West, if these fights ever
escalated beyond carping over the fence, Judge Colt and his jury of six
would settle them. These days, the 130 or so residents of this southern
Utah community keep their pistols holstered and, instead, shoot it out in
court. One Boulder court case has wound its way into federal court and
another is before Utah's Supreme Court. Both deal with one of Utah's
hot-button issues: alcohol and a business's right to sell it, and a
community's right to restrict or prohibit it: -- The Utah Supreme Court is
questioning Utah's time-honored policy of ``local consent'' -- requiring
applicants for state liquor licenses to first get approval to serve alcohol
from their local city council -- in response to Boulder innkeeper Mark
Austin's suit against the town. -- A federal jury will decide this spring
if the property rights of Boulder beer retailer Julian Hatch were violated
by the Town Council when it refused to grant him a license to sell beer,
while giving licenses to two other stores in town.

Austin and Hatch could be called crusaders at best, troublemakers at worst.
They have elected to use their own money to fight city hall, and the
state's sometimes imposing, confusing, antediluvian brace of liquor laws, a
conglomeration of licensing regulations that a Utah Supreme Court justice
last month labeled ``schizophrenic.'' And while their cases were born out
of small-town feuds, the decisions handed down may well change the way
communities around Utah regulate booze. ``While I may be a crusader, I
certainly had no intention of going this far,'' says Hatch, who has lived
in Boulder since 1981. ``I haven't spent $40,000 on legal costs over the
past four years just to try to get a beer license that I make
50-cents-a-six-pack on. This is about basic constitutional freedoms and
justice.'' Austin has spent more than three years taking his case to serve
wine and cocktails in his upscale Boulder restaurant from the Town Council
to the Supreme Court. He says he ``does not relish'' fighting the state's
historic predisposition against alcohol, fostered by the dominant Church of
Jesus Christ of Latter-day Saints religion, which discourages drinking.
``Until Utah is told it is part of America, we must expect this type of
thinking,'' says Austin, owner of the Boulder Mountain Lodge. In a hearing
on his case last month, two Utah Supreme Court justices raised major
questions over the state's 63-year-old policy of requiring those seeking a
state license to serve wine and cocktails with meals in a restaurant to
first get written consent from the local city council. Austin had sued
Boulder for withholding local consent from his state liquor license
application in 1995 after Town Council member Wulf Barsch declared ``this
place was settled by Mormons who don't believe in the use of alcohol.'' He
lost his case early this year when 6th District Judge K.L. McIff ruled that
local governments have broad discretion to prohibit alcohol sales within
their borders.

Maybe not, according to Justices Leonard H. Russon and Christine M. Durham.
Noting that Utah's Liquor Control Act charges the state with licensing and
regulating the sale of alcoholic beverages in a manner ``which reasonably
satisfies public demand,'' the two Supreme Court judges questioned how any
town could prohibit wine and cocktail sales while still satisfying public
demand. ``Having undertaken regulation of liquor, the state has embraced
and articulated a policy of enabling availability,'' Justice Durham said
during a Nov. 18 hearing. ``So if you interpret local consent in such a
fashion to permit total prohibition, that would be construed in such a way
that is inconsistent with the public policy that underlies the
regulation.'' Russon agreed.

``The statute states so clearly what the policy is, when you talk about
consent it has to be read in light of the general overall policy, which
means there is going to be consent but they cannot withhold it totally,''
he said. ``[A community] may be able to restrict the hours or days or [move
sales] further away from school grounds or parks or something to do with
traffic, but to read it as an outright power to do away with a policy the
state has clearly articulated does not seem correct to me.'' The Utah
Supreme Court has yet to rule on Austin's appeal, and it is almost
impossible to gauge the court's mood from the line of questioning during
the brief oral arguments. However, if the court does declare that Boulder
can merely regulate hours and locations of liquor sales -- rather than
mandate an outright prohibition -- the impact would be felt across the
state. Russon went so far as to speculate that even if a majority of
residents of a Utah community such as Boulder do not want hard liquor to be
for sale to the public, state law might require the minority be
accommodated. ``The statute talks about the rights of citizens of the
state, and the citizens of the state are not just the citizens of
Boulder,'' the 14-year veteran of the Utah bench said. ``Boulder doesn't
have a big wall around it; they are isolated but they do not get to live in
their own little world. They have other people coming back and forth
[through town], and maybe they don't like that. But the citizens of the
state, there may be those who stop in Boulder for dinner who want wine with
their dinner, and this statute and policy seems to suggest that ought to be
made available to them.'' Attorneys defending Boulder against Austin's
lawsuit said they ``respectfully disagree'' with Russon and Durham's
interpretation of the state law, and believe that Utah communities can
indeed go dry if they want. ``The lodge asserts without any legal support
that residents [of Utah] have a statutory right to drink alcoholic
beverages,'' said defense attorney Larry Jenkins of Salt Lake City. ``The
liquor business is not one which a person has a natural, inherent,
inalienable, vested or constitutional right to engage and this is because
it is potentially, if not in fact, a menace or nuisance to the community.''
Jenkins said that selling a glass of wine in a Utah restaurant is ``a
privilege, not a right,'' and if a community -- or every community in the
state -- decides to prohibit the sale of all strong drink, no civil rights
are violated.

Jenkins, a non-drinker, even told the court that if a town goes dry ``it
doesn't mean you can't have liquor with your dinner, it just means the
restaurant can't sell it to you. If you wanted to bring liquor with you to
the restaurant, you still have that option.'' Actually, you don't. Utah
outlawed ``brown-bagging'' in 1991. ``I don't think you can do that
anymore,'' Durham told Jenkins. ``So, it is the case in Boulder that you
cannot have alcohol with a meal in a restaurant.'' While Austin's legal
battle centers on how much control local governments have over alcohol
sales, Hatch's lawsuit in U.S. District Court focuses on an alcohol
retailer's rights if a town tries to dry up. At the same 1995 Boulder Town
Council meeting where elected officials rejected Austin's request for local
consent, they passed an ordinance allowing two convenience stores to sell
beer for off-premises consumption.

But Hatch's store, which had been selling beer before the ordinance, was
not among the two. Hatch's lawsuit claims his property rights were violated
when the town refused to recognize his store's existence and decreed that
two other retailers would be allowed to continue selling ``light'' beer,
with 3.2 percent alcohol.

``Julian did not have a license to sell beer, but at the time, Boulder did
not even have a licensing ordinance,'' says Hatch's attorney, Budge Call of
Salt Lake City. ``He had a business, a constitutionally protected property
right and he was entitled to due process before the town took that away
from him.'' If Hatch succeeds in suing the town for improperly taking away
his beer-retailing livelihood, it could mean other existing alcohol
retailers would sue local Utah governments that attempt to ``dry up'' their
communities by revoking local consent or passing ordinances to reduce
retail outlets. In court last week, U.S. District Judge Dale Kimball asked
whether there was any chance of settling Hatch's case against the city and
avoiding the jury trial set for April 5. ``What the plaintiff wants is a
beer license and the town is not willing to give him that, so that's where
we stand,'' said Karra Porter, the attorney representing Boulder in the
case. The town has argued that Hatch's store -- dubbed Freedom From
Religion ``to trigger some thought,'' he says -- was not a legitimate
business because it was not well-known in town, it was off the highway, and
he kept rudimentary business records.

Hatch's store is emblazoned with two large signs reading ``FREEDOM'' and
``BEER.'' He says he has had a federal tax stamp to retail beer and has
filed sales receipts to show he was doing a regular business retailing brew
before the town passed the ordinance that closed him down. Hatch has become
somewhat of a pariah in the community for challenging local convention
through legal action. In one counterclaim against him filed in 6th District
Court, Boulder residents Larry and Judy Davis -- he runs the local state
park and she is the postmistress and town clerk -- claim Hatch ``has
engaged in a campaign of hate and terror towards the residents of
Boulder.'' They contend his lawsuits are a ``perversion of the process to
accomplish an improper purpose; that is to intimidate the residents of the
town as well as the town council to comply with Mr. Hatch's narrow and
peculiar political and philosophical positions.'' Hatch says his views may
seem ``narrow and peculiar'' to narrow-minded people. To him, he is merely
promoting basic constitutional freedoms. ``What is going on in the small
rural town of Boulder and communities throughout Utah is the opportunity
for discrimination of the minority, an opportunity created by the
Legislature, carried out by local officials and put in place by a powerful
religious majority,'' says the descendent of LDS pioneers. ``These people
don't seem to understand the fundamental constitutional concept that
freedom of religion is meaningless without ensuring citizens' rights to
have freedom from religion.''

Luciano Colonna Utah Harm Reduction Coalition 81 O Street ï Salt Lake City,
UT ï 84103 phone: (801) 532-5081 ï fax: (801) 532-5081 lcolonna@xmission.com