"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Let’s appoint a commission

Now assuming the news reports on this are correct (and please do alert us if they’re not), here’s the situation in Boise:

Somehow, at some point in the past, an ordinance was put on the books in Boise banning businesses from allowing customers to use sidewalk cafes after dark. Why they did this, no one seems to know. The ordinance has been obscure enough that numerous businesses around town have allowed such cafes to operate extensively, and they’re often integral to those businesses. There have been, apparently, no complaints about the practice. The ordinance has not been enforced for years at least, if ever. The facts of the situation recently were brought to the attention of Boise Mayor David Bieter.

There are several ways this could have been handled. Two, primarily.

One is the slam dunk. Since there’s no civic controversy here – just about everyone interested is on one side of the matter – the solution seems simple: Draft and pass a new ordinance reflecting an existing reality which is apparently fully acceptable around town. If anyone has a problem with it, they can surface during the ordinance hearing process to say their piece. Most likely, the issue would have been over with already, and Bieter would have gotten points for decisiveness.

The other is what Bieter actually did. He appointed a task force to consider the matter. It plans to deliver a report to the city council on Tuesday. The council will then consider what to do. In the meantime, a lot of people will be on pins and needles over an issue that needn’t have been.

There’s a lesson in the subtleties of governance here.

UPDATE: As hoped for, a reader brings forth more information (a tip of the hat) which suggests the issue is a little different than the news report had it. (We’re not shocked by that.) At the same time, we’re not sure our conclusion is much changed – other than that the city’s, as it turns out, is closer to it than we thought. Regardless, anyone reading the previous also needs to know the following.

The ordinance and the city’s own explanatory document make clear, for example, that what’s under consideration is sidewalk cafes serving alcohol, as opposed to, say, coffee shops. The measure was passed in 1993 to allow for service in sidewalk areas; this being an expansion of alcohol sesrvice, some compromise evidently seemed called for, and so it was opposed until sunset. However, as the city notes, “The hours of operation section was not enforced as sidewalk cafes multiplied in the downtown area. The current trend is for sidewalk cafes attached to bars to serve until 2:00 a.m. and to allow consumption until 2:30 a.m., as set forth in Idaho Code for licensed

The letter goes on to note, “As calls for service to the downtown core have increased, officers have indicated a desire to enforce the current ordinance.” This is one peculiar sentence. Doubtless, as the number of night spots in downtown Boise has increased over the last decade and a half, the number of calls to the area has increased. But how much of that relates to the sidewalks? Have the sidewalk locations contributed to problems? Have people had problems walking down the sidewalks because of cafe activity there? The city letter recounts, “Several business owners expressed concern that sidewalk cafes were portrayed as a problem when other factors like vendors and over service at bars without sidewalk cafes were not taken into account.” Personally, we’d much rather walk down a city sidewalk at night which is bustling with outdoors activity, than one dark, quiet and relatively unopulated. We consider such activity an aid to safety. And we would hope that police would keep a watch on those minority of places where trouble does sometimes congregate.

We’ll back off our snark at the formation of a committee, because the city makes clear its point is an overall review of issues concerning the increasing numbers of bars in the downtown area – a not unreasonable subject for general discussion. At the same time, a city proposal called for temporarily extending the sidewalk alchol hours to 2 a.m., close to the state requirements, until the end of the year. Between here and there, the city said, something definitive should be done.

Okay, that’s fair enough – not too far from what we proposed. But it still raises the ugly question of passing ordinances which aren’t going to be enforced, as this one clearly wasn’t from the beginning. What other ordinances are on the Boise (or other) code books, unenforced but sitting there, waiting for someone to pull them out of a back pocket, surprising hell out of everyone? Unenforced ordinances and laws, which sit like little time bombs whose location is known to only few, are one of the things that drive people nuts about government.

The search for such, and their correction, would be an excellent topic for another committee.

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