Where There's a Bill...
New Legislation Poses a (Not So) Minor Threat
-- "I'm Just a Bill," Schoolhouse Rock!
illustration by Doug Potter
"Obviously, [the Statesman] doesn't know how a bill becomes a law," says Rebecca Herron, legislative aid to the Texas Senate Committee on Health & Human Services, which Sen. Zaffirini chairs. By reporting that a piece of draft legislation was actually a bill headed down the legislative pike for voting, the Statesman created a maelstrom of controversy that outraged local clubowners confronted with the possibility of losing revenue garnered from underage admissions and non-alcoholic beverage sales.
Within days, radio, press, and television outlets statewide had picked up the story, and the clubowners' cause, with some reports calling for a phone, fax, and letter-writing campaign to protest the bill. Meanwhile, as the controversy over Sen. Zaffirini's alleged bill raged, Rep. Alvarado was getting ready to introduce a similar bill -- a real one -- legislation with more serious ramifications. The difference between the two proposals? First off, one's a bill, the other is not.
"I got this far, when I started, I wasn't even a bill, I was just an idea"
According to the state's official citizen handbook, a "bill" is defined as a "proposed law during session for consideration by the legislature." At the very least, a bill must be drafted, presented, and filed by a sponsoring legislator. Herron says the first caution flag for readers should have been that the Statesman article failed to cite either a bill number or a sponsor for Sen. Zaffirini's legislation. That's because neither exists. What there was, however, was "draft legislation."
What exactly is "draft legislation"? Although senators and representatives can and do propose draft legislation in advance of officially filing a bill, the term itself is open to semantical interpretation, mainly because anybody can propose ideas and call them "draft legislation." In fact, individuals, lobbyists, advocacy groups, and state agencies routinely use draft legislation as a vehicle to better outline their positions. And what Sen. Zaffirini was outlining, at least at the start, had little to do with minors and live music venues.
In May of last year, Lt. Governor Bob Bullock issued Sen. Zaffirini's Health & Human Services Committee an "interim charge" that the committee file a report which addressed ways to "improve immunization programs for children and identify necessary steps required to limit access to tobacco and alcohol by children."
In July and August, the nine-member committee held two public hearings, where witnesses testified to concerns about all three of the interim charges, and by its September 1 due date, the Committee issued its Interim Report, unanimously approved and titled "Improving Immunization Programs and Restricting Children's Access to Tobacco and Alcohol." Within the report, the Committee summarized the witness testimony, reported its progress and findings, and suggested three sets of "draft legislation."
While the first and second sets of draft legislation addressed immunization programs and the restricting of children's access to tobacco, the third focused solely on the Committee's efforts to curb underage drinking. It's this third piece of draft legislation that apparently became the basis of the Statesman story.
"It's common practice to propose draft legislation as part of a Committee's documentation," says Herron. "And it's listed in the appendix as merely draft legislation. But just because it's suggested in the back of a study doesn't mean it will be filed."
Indeed, at the start of this legislative session on January 14, only the Committee's draft legislation on immunization and tobacco had been sponsored by senators and brought to committees for consideration. Therefore, says Herron, the only document that even suggests limiting minors' access to nightclubs is included in the Interim Report -- a document with no less than four warnings that draft legislation is "expected to change throughout the legislative process" and "should be considered a `work in progress.'"
That work in progress -- addressing minors' abilities to purchase alcohol -- is itself broken into three distinct, stand-alone pieces of draft legislation: the regulation of alcohol awareness courses by the Texas Commission on Alcohol and Drug Abuse (TCADA); the ability of the TCADA to charge a fee to certify education programs for repeat offenders; and an act "relating to creation of an offense involving presence of a minor on premises covered by certain alcoholic beverage permits or licenses."
Yet even in the draft legislation phase, the section regarding minors and points of alcohol sales is watered down by four exemptions: one for working minors; another for minors accompanied by an adult parent, guardian, spouse or custodian; a third for businesses that derive 25% or more of their gross revenues from the sale of food, gasoline, or other goods not including alcoholic beverages; and finally one for venues that derive 25% or more of their gross revenues from the sale of tickets to live performances. Clearly, it's these latter two exemptions that would most affect clubowners. And because of this, committee insiders say it's unlikely that the language that makes clubowners nervous would make the final cut.
"I'm one of the lucky ones, most bills don't even make it this far."
Meanwhile, back at the House, Rep. Alvarado was getting ready to introduce his own bill, one with an actual number and sponsor, and one that goes much further in limiting minors' access to live music venues.
By proposing to amend the state's Alcoholic Beverage Code, HB 599 prohibits minors from being on the premises of clubs that hold a mixed beverage permit, or late-night mixed beverage permit, or sell beer or wine retail, either on or off the premises. The bill exempts legally working minors and "minors who at all times are on premises in the presence of the minor's parent or adult spouse or an adult person into whose custody a court committed the minor."
Again, of particular interest to local clubowners and concertgoers are the bill's final two exemptions, which, on the surface, appear far tougher than Sen. Zaffirini's draft legislation. Exempted from HB 599 are businesses that:
* Derive 65% or more of their gross revenues from the sale of food and other goods, not including alcoholic beverages.
* Derive 50% or more of their gross revenues from the sale of tickets to outdoor live performances.
Obviously, neither of these exemptions apply to indoor live music venues, and Rep. Alvarado says this is wholly intentional -- he wants to keep minors out of live music venues. "[Live music venues] are the problem," says Rep. Alvarado, who believes minors often bring Ziploc bags of detergent with them into clubs in order to wipe off their handstamps. "Once a kid is 21, he can do whatever he wants to do. But there are too many DWI's and too much death. Little kids aren't able to handle drinking or driving. They combine them and they start with two strikes against them."
Furthermore, because Rep. Alvarado contends that nightclubs and live music venues increase the availability of alcohol to minors, he's unwilling to budge on the bill's wording. "I'm happy with it as is," he says. "This way, they can't go into any licensed beer or alcohol seller. So if Willie Nelson's playing inside a club, tough! The kids aren't going to see it."
Surprisingly, this is not the first time a Rep. Alvarado-sponsored bill on this subject has been filed. In the legislature's last session, a similar bill left the Licensing & Administrative Procedures Committee unaltered and actually passed a House vote. When the bill landed in the Senate late in the session, it was placed in the Senate's State Affairs Committee. Although it never made it to a committee discussion or vote -- and therefore died when the session ended -- Rep. Alavardo claims the bill's failure was a matter of timing, not policy. "It ran out of time," says Rep. Alvarado of the bill he claims had support from Sen. John Montford (D-Lubbock). "Because of a clerk's mistake, it was sent to the wrong Senator's hands and it sat for three weeks. By then it was too late to make the deadline for debate."
Yet by launching HB 599 so early in this legislative session, Rep. Alvarado says he's confident his bill can once again pass a House vote and get Senate approval -- turning his bill into law. And while HB 599 hasn't yet been assigned a House committee, Rep. Alavardo says he's already begun looking for an official Senate supporter. With all the press and media attention on Sen. Zaffirini's somewhat similar draft legislation, Rep. Alavardo says he may even have a Senate foothold. "I'll just have to go and talk with Sen. Zaffirini," he says.
For her part, Herron says any discussion between Sen. Zaffirini and Rep. Alvarado would be "between them," and that no such discussion has taken place as of yet. Right now, says Herron, it's also too early in the legislative session to determine how Rep. Alvarado's bill will affect her office's decision to either move forward with or table their own draft legislation. But even before the filing of HB 599, Herron says Sen. Zaffirini always considered it an option to meet with the TABC, Texas Restaurant Association, and the Legislative Council to refine the draft legislation's language prior to seeking a sponsor (Sen. Zaffirini herself or another senator).
A "talking points memo," originally prepared to address public concerns raised by the Statesman story, confirms that approach, and repeatedly stresses that the draft version is just a draft and that no bill has been filed. Also included in the memo is the notice that "Senator Zaffirini is very sensitive to the concerns of nightclub owners who believe that this type of legislation could drive them out of business.... The intent of the bill is to keep minors from drinking alcohol, not limit their access to live music venues."
"It's a long, long week while I'm sitting in committee, but I know I'll be a law some day, at least I hope and pray that I will, but today I am still just a bill."
So, if there is no actual bill from Sen. Zaffirini or the Health & Human Services Committee -- and all points indicate the time to rework the language would have likely come before the Senate went into session -- then was there ever any real reason for concern on the part of underage clubgoers and the clubowners? Like any question in the political arena, it depends on who you're asking.
Although some Senate insiders say it would take considerable rewording to pass her draft legislation, those same insiders warn that because Sen. Zaffirini chairs a committee she would have a far easier time moving it through the legislative process -- which would likely start in her own committee.
As for HB 599, even if Rep. Alvarado were once again able to push his bill through the House, there's no guarantee it wouldn't end up -- again -- in the Senate's State Affairs Committee, which insiders call the "Graveyard Committee," because it's often where bills with little Senate interest go to die. And despite Rep. Alvarado's efforts, the bill has yet to find Senate backing since Sen. Montfort didn't return this session to carry the bill's torch. Also potentially damaging to the bill's chances is that this time it won't pass through the legislature unnoticed -- we've noticed. A mobilized effort could indeed force Rep. Alvarado -- or the committee where the bill ends up -- to change HB 599's wording to something more club-friendly.
The Texas Restaurant Association (TRA), for one, didn't need to be told twice, and immediately closed ranks, meeting with Sen. Zaffirini last year and getting her to exempt restaurants with a "Food and Beverage Certificate." A similar meeting with Rep. Alavardo is planned, and TRA General Council Glen Garey says he expects similar results. But Garey says that clubowners appear to be lacking their own lobbying force. "Often it just comes down to sitting down with a legislator and suggesting ways to improve their bills," Garey says. "But I've never seen a bar association come down to the legislature and make their thoughts known. They need to get in now and do something."
While it's clear that, association or not, minors in clubs and bars is destined to become one of this year's hottest live music issues, so far, it appears that the only real mobilization against either HB 599 or Sen. Zaffirini's draft legislation has come from concerned children, who are responding to reports in the press, radio, and television that gave out the Senator's office address and phone number.
"This is obviously a complicated issue, and nobody's pretending we've found a solution, if there is one," says Herron. "We're getting phone calls and letters from upset children, and while I'm all for kids getting involved in the process, they should be provided with the correct information so they can take that bundle of energy and channel it properly. It's the Statesman story and the resulting radio and television reports that have distorted our intent and the legislative process itself."
Ironically enough, it is perhaps this very "distortion" that will bring the public scrutiny needed to combat these types of legislation. Vigilance is everything.