With plenty of questions yet to be answered, Walnut Creek City Council members made no decision on an 18-month effort to find ways to regulate the city's downtown bar scene.

A hearing at Tuesday night’s City Council meeting offered council members a chance to examine recommendations made by the Alcohol Service Policy Ad Hoc Committee, formed in 2009 to respond to issues surrounding Walnut Creek’s increasing popularity as an East Bay nightlife hotspot.

The council agreed to ask the committee to further study the questions raised last night.

As the committee goes back to work, City Council member Kish Rajan said it should consider the big picture of what Walnut Creek wants its downtown dining and entertainment scene to look like. 

“We want it to be a wonderful destination, with good restaurants, the theater,” he said. “We want it to have fun bars for people to come to and have a good time. But we have the data and the judgment of police that shows that it can turn from something positive to something negative. I don’t want us to be known as a club scene or an after-hours, hard-core drinking party scene.” 

The two groups with the most at stake are the police, who say they face enforcement challenges with a majority of the city's 100 alcohol-serving businesses located downtown, and more than 40 newer businesses affected by a 2004 ordinance overseeing closing times.

On Friday and Saturday nights, officers say they're focused on keeping the peace among patrons who drink too much and get into fights or try to drive drunk.

The average number of weekend visitors to downtown Walnut Creek has tripled in recent years to 1,500. The majority of them come from out of town. Meanwhile, the number of people arrested for being drunk in public or for driving under the influence has gone up since 2008, said Police Chief Joel Bryden. With so much attention focused on downtown, police cannot adequately cover the rest of the city, he and other officers have said. 

Also affected are the owners of 43 alcohol-serving establishments that are  subject to a conditional use permitting process the city put in place in 2004. This process regulates, among other things, bar closing times. 

The 57 businesses that opened before 2004 are not subject to this permitting process  and are allowed under state Alcoholic Beverage Control rules to potentially stay open until 2 a.m., However, most of the 57, which include fine dining restaurants, close much earlier than 2 a.m.

The newer businesses must adhere to both ABC rules and the city 's permitting process that makes them close down earlier than 2 a.m. The 2004 ordinance was designed to let the city stagger bar closing times so that not every bar and club was letting their sometimes inebriated customers out onto the streets at the same time.

Some of the newer bar owners complained that they were not operating on a level playing field with the older popular establishments, such as Crogan’s Bar and Grill or Mr. Lucky's. By staying open later, these older businesses can bring in more customers and make more money.

The Alcohol Service Committee studied a number of ideas and ended up focusing on a proposal to establish a new ordinance that would bring the older establishments under city regulatory control. 

This proposed ordinance would use a legal mechanism in which the city deems these businesses “approved” but then subjects them to yet-to-be determined performance standards. If they fail to meet these standards, the businesses would have to go through the same permitting process as newer businesses. This process could subject them to regulations, including earlier closing times. An administrative hearing board would oversee the permitting process. Businesses could also face having their permits to serve alcohol revoked if they failed to adhere to the standards.

Council members, bar owners and residents raised questions and concerns about this proposed ordinance Tuesday night. However, most agreed it has potential.

They wondered if it would set up two different sets of regulations and performance standards for bars and restaurants, depending on whether they opened before 2004 or after 2004. 

Council members agreed the standards should be similar and objective.

As to whether it would be confusing to have two sets of regulations , Community Development Director Sandy Meyer said the city is more or less stuck going that route. State law prevents the city from taking away the 2 a.m. closing time from  older businesses. The only way to gain control over their closing times is to use this “deemed approval” mechanism, which would allow the city to enforce performance standards. 

Planning Manager Victoria Walker said this focus on older establishments provides a strategy that could level the playing field and allow newer businesses to prove their ability to handle later closing times.

“If most of the problems downtown are caused by a few businesses, then let’s get a handle on those businesses, so that they are not such a strain on the police department,” she said.

By cracking down on the trouble makers and taking away their later closing hours, the city could then make those later closing times available to newer establishments that operate legally and keep their patrons in line.

Resident Tom O’Brien who lives near downtown on Shuey Avenue agreed that the ordinance has potential but said the current permitting process, which could potentially apply to all businesses, lacks the legal teeth to allow the city to crack down on problem establishments. He noted that two of the businesses associated with the now infamous series of bar fights in early October, which involved up to 50 combatants and multiple arrests and injuries, operated under the permitting process.

“What did anyone do about that?” O'Brien asked.

Pat Wilkinson, owner of Crogan’s Bar and Grill, noted the different levels of regulatory control—state and local—that an older businesses like hers might face. She said many questions remain unanswered, such as what the performance standards will be and how the administrative hearing board would work.

 Council member Kristina Lawson said the new ordinance should make distinctions among the different types of businesses that serve alcohol in Walnut Creek. 

 High-end restaurants, such as Lark Creek Walnut Creek or Prima Ristorante, focus on serving food, and close before what Mayor Cindy Silva called the 11:30 p.m. “witching hour.” After 11:30 p.m. the environment changes downtown, and the crowds seem more interested in drinking and partying. 

Council member Bob Simmons suggested the committee look at charging impact fees to bars that stay open late to cover costs to the city associated with managing  rowdy bar crowds. These costs include jail booking fees, which can amount to $150,000 a year, Simmons estimated. Right now, Bryden said, the state helps the city cover those fees, but that state help could go away.