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Herald-Zeitung Online

Judge overturns 'can ban,' cooler size limitations

Posted: Monday, January 27, 2014 8:41 am | Updated: 1:27 pm, Wed Jul 23, 2014.

NEW BRAUNFELS — In a brief, three-sentence email sent late Sunday night, visiting Judge Don Burgess of Orange announced he had granted the motion for summary judgment filed by local tubing and tourism firms suing to end New Braunfels’ controversial can ban and cooler-size-limitation ordinances.

“That means he has declared both the container ordinance and the cooler ordinance to be unconstitutional and unenforceable,” attorney Jim Ewbank of Austin, who represents the tubing and tourism firms, said Monday morning.

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  • emilyrose1111 posted at 7:09 am on Mon, Feb 10, 2014.

    emilyrose1111 Posts: 2

    It's very Funny actually. All of them created the mess within the 1st place. Since they claim it's State property, the city's taxpayers ought to quit paying for cleanup and stream patrol. Leave that up to the state we need not to discuss a lot about this stuff.


  • NoWay posted at 11:51 pm on Mon, Feb 3, 2014.

    NoWay Posts: 248

    Nbhome. What I'm saying is I don't give a care about your ancestor shaving come here whenever they did because that doesn't make you either a good or bad person and it doesn't get you any special consideration. Read the post. And sure, you're always welcome to leave as is anyone who chooses.

    Sulphur, I don't work in town so I'm not making any money. Awfully presumptuous aren't you? So back up your comments. Who are those greedy selfish ones? Is there at least one that isn't, or do you make prejudicial statements to make up for your lack of real knowledge?

  • i2014 posted at 2:07 pm on Sun, Feb 2, 2014.

    i2014 Posts: 2

    'The City DOES make money off of the tourists'
    They city takes in a huge amount of $$ from tourist throughout the year but it's never enough for government. Ask yourself where is all that extra money going? Tourist tax dollars don't cost the city much in the way of providing added city services as tourist by description leave after their visit. And yet city council whines about having to cleanup after them. Tourism income more than pays for river cleanup cost even though much of it is done by volunteers already.
    A republic is about laws. A democracy is about majority rule. We were founded as a republic for those reasons. A republic stands the best chance of defending the rights of the minority and majority alike.
    However, we've become more of a democracy in politics if not practice. Laws and policies have been enacted and acted upon from the perspective of majority rule, no matter how wrong it is.

  • NBTaxpayer posted at 5:06 pm on Sat, Feb 1, 2014.

    NBTaxpayer Posts: 1391

    The City DOES make money off of the tourists as does ALL the Tourist Industy Folks 7 Stores & eateries here in Good Old New Braunfels!

    I after some serious thought feel that a "1 Cent City Tax increase" on ALL that the City can Tax should be done during either The Summer Tourist Season or for the ENTIRE YEAR!

    Seems that folks wants Tourists Dollars but as NBHome said no one wants to do the Clean UP after!

    Valid Point!

    Enforce ALL the City Ordinances & Laws on the books with maximum penalty given! (Cooler Size & Disposable Packaging Restrictions & Ban now excluded due to Summary Court Judgement)

    State Of Texas having "Control of ALL State Of Texas Waterways & Lakes, rivers etc requires them to patrol the water & provide monitoring & enforcement & clean up assistance which requires them (State Of Texas) to be a part of the solution!

    All River Operators (Tube & Raft & Guide Companies) must also become more active in Clean Up as it is in ALL Peoples Best Interests for both Rivers to Look & Be their Best!

    GBRA must also release a minimum of 100 CFS to sustain Guadalupe river Health & Clean water for a Clean River!

    In Short The REAL Solution has always been that ALL become involved & DO THEIR JOBS & BE ACCOUNTABLE!

    FACT - WE all have to solve this NOW so WE as a City can move on from Rivers & River Neighborhoods & Golf Courses, Lawsuits we can move on to other far more important city issues like Police, Fire, EMS, Streets, & Drainage & Contracting Out of City Services!

    WE as a City have spent way to much time & just plain ignored what is really important!

  • nbhome posted at 11:01 pm on Fri, Jan 31, 2014.

    nbhome Posts: 215

    @No Way--Are you seriously saying I should leave New Braunfels because I want the river to be clean, free of cans and other litter??? I am saying that the natural state of this river is to NOT be full of beer cans and trash. It has been polluted by too many people who refuse to clean up after themselves.

    Go educate yourself at the library. Look at some old photos so you'll get the idea.

  • NBTaxpayer posted at 6:35 pm on Fri, Jan 31, 2014.

    NBTaxpayer Posts: 1391

    Bans like this are AGAINST The U.S. Constitution, U.S. Federal Law & State of Texas Law which all over rule & trump City Law & or Ordinances!

    Holding an election to ban if that ban violates The Constitution Federal or State Law No Matter How many Votes Vote in Favor of something illegal which becomes illegal when it violates higher law!

    If you WERE allowed to restrict cooler sizes or ban disposable packaging then what is next? Ban Books? Ban news reports in the City about the City or its people (which BTW is CENSORSHIP)? Set The Length of Dresses? Ban Red Cars? Ban Fishing? Segregate the population as was done in years past?

    Argument by those that says that a Vote by The People would some how be right to over rule The U.S. Constitution, Federal Laws & State Laws which are in place to prevent extreme elections which infringe on ALL American & State Of Texas Citizens Rights not to mention Citizens from parts of our state or from other states & even other countries who are visiting OUR Country & OUR Local Area!

    Frankly OUR city Council & Government has become too extreme & The Courts were correct to have REINED them in with this ruling!

    Summary Judgement by judge Alone was agreed upon by ALL parties to include The City & The City LOST as it has in all previous appearances before all levels of State court to include The State Of Texas Court of Appeals which placed this case at this level for a final solution!

    Elections only Count when they are legal & the issues can be regulated or controlled in that manner & does not Violate The Constitution, Federal Laws & or State Laws!

    Hopefully OUR City Government will cease with The EXTREME ELITE Government & will use Existing State Resources & Laws & existing City Laws & Ordinances found to be legal so as to apply to all who break those laws & or ordinances with maximum penalties!

  • Sulphurbound posted at 12:57 pm on Fri, Jan 31, 2014.

    Sulphurbound Posts: 33 are correct. The problem is not the people. The problem is the greedy, selfish, only interested in themselves, outfitters...hope the newly found cushion in your wallet is worth the destruction of your town and its rivers. Disgusting..

  • NoWay posted at 9:38 am on Fri, Jan 31, 2014.

    NoWay Posts: 248

    Yes is the answer.

    Who cares about relatives since the 1800s? Does that mean you count for more than some guy who moved here last year? Is 150 years of ancestors an indicator that you are intelligent, moralistic or somehow blessed with greater wisdom? NO.

    And the trash was from people, not cans. Listen to you man, you sound like those anti gun nuts who place blame on an inanimate object. People are the problem, people who don't behave, city hall that can't solve, a police chief that can't figure it out, a group of homeowners who think they can force everyone away, and a group of people who think their ancestors bought them some extra consideration.

  • NBTaxpayer posted at 2:32 pm on Wed, Jan 29, 2014.

    NBTaxpayer Posts: 1391

    Folks this is MY point exactly TCEQ just like Barton Springs in Austin, TX checks water for Bacterial Levels & when it exceeds SAFE LEVELS they CLOSE or Limit the number of people into Barton Springs!!!

    TCEQ by State of Texas Law is responsible IMHO for any river clean up that being said it is UP to the State When & How that would occur!

    Now this could hamper ot Close River Operations & River & Tubing Operators might not be happy if it takes weeks or months for The State to come in & do any Clean Up! ERGO if the river is to remain open will have to take a combined effort from ALL SIDES especially from The River & Tubing Industry with The City SUPERVISING!

    State of Texas Law Enforcement Jurisdiction on ALL Texas Water is exclusive to The Coast Guard, DPS & TPW!

    City Law Enforcement is responsible for the shore & in in the parks & streets...

    City can use City Park Rangers instead of using police by Order of City Council with NBPD Supervising City Park Rangers!

    Once again ALL will have to C O M P R O M I S E & "Work Together"!

    BANS & Restrictions are something that require getting an Opinion from The State of Texas Attorney General PRIOR to any Decision or Election!

    City received BAD legal advice & might have recourse with this latest loss & decision from The Courts!

    Once again as I have said many times in The Past "You can knock a wall down with your head BUT why would you want to ????"

    Time for OUR City Government to USE THEIR HEADS & NOT TO KNOCK DOWN A WALL!

  • ALSTON posted at 10:37 am on Wed, Jan 29, 2014.

    ALSTON Posts: 1263

    I believe the EPA will have some say in this before all is done. There are federal as well as state water standards and too many bodies in too tight a space throwing trash into the river degrade the water quality too much for downstream users. I urge our local officials to invoke the state and federal water regulatory agencies to get involved since they will have the final say anyway.

  • emilyrose1111 posted at 9:07 am on Wed, Jan 29, 2014.

    emilyrose1111 Posts: 2

    Funny. All of them created the mess within the 1st place. Since they claim it's State property, the city's taxpayers ought to quit paying for cleanup and stream patrol. Leave that up to the state.

  • Sneezy posted at 7:25 am on Wed, Jan 29, 2014.

    Sneezy Posts: 122

    @nyspanglish - If the ruling states that the river is the authority of the State and not the City, local law enforcements do not have the jurisdiction to arrest anyone "sinking" cans or just dumping coolers ON the river. Based on this ruling, anyone can challenge an arrest for a violation that occurred ON the river by a local law enforcement. Yes, there is enough trash OFF the river also. As most stated, I originally did not like the ban, but for the last 2 years I was able to bring my son to the river without exposing him to vulgar language and live pornography. Sadly this will continue. As you see on the article, college Fraternities are probably starting to line up and trash this place.

  • Easy Ed posted at 7:55 pm on Tue, Jan 28, 2014.

    Easy Ed Posts: 1

    Agree with Sneezy, city should not spend another dime cleaning up after a bunch of drunks. State river...fine state clean up the mess, and while their at it they can provide the law enforcement.

  • NBTaxpayer posted at 5:58 pm on Tue, Jan 28, 2014.

    NBTaxpayer Posts: 1391

    Folks "I/WE" want & need Clean Rivers....

    However The U.S. Constitution, U.S. Federal Laws, State Of Texas Laws have PRIORITY & PRECEDENT over City Regulation & Ordinances!

    Folks YOU don not BAN things for the Law Biding MAJORITY because of the sins & misdeeds of the FEW!

    Compromise & working together is the ONLY answer & it should have been done long ago!

    Now the use of City Park Rangers to police litter & to enforce city park rules regarding same would be much cheaper, better & would be the proper solution when used with River Employees & Volunteers! Also litter offenders can be ticketed & fined with repeat offenders being made to police trash in addition to fines IMHO!

    Also since The State id responsible for Law Enforcement on ALL State Of Texas waters regardless of location requires that THE CITY formally request & if need be demand that The State Of Texas maintain Law & Order on both The Guadalupe River & Comal River & that would require Texas Parks & Wildlife (TPW) & DPS to provide said Law Enforcement!

    Now the city CANNOT ban Snickers, M&M's, Cheetos, Frito - Lay, 7-Up, Pepsi Bottled Water BUT perhaps there can be a prior review to place a City Tax on all disposables of between 1 Cent-5 Cents....

    City Tax is a YES but a City Ban is a NO!

    Disposable Packaging Tax would cover Trash Removal along with a City Park or Property Access or Exit Fee!

    In short folks Total BANS are not the answer or right but while WE live in The USA WE The People have to preserve LAW & Order

    Another thought is to fully restrict parking on the street to residents & their visitors only by PERMIT ONLY with an accountable number of permits given to each resident to include their guests during Summer Months....

    ALL individual tubers or guests to the park would have to pay to park on city & designated PAY PARKING AREAS with shuttle service provided!

    Stationing City Police & other law enforcement officers at these lots would allow for observation of both vehicles to prevent break in & to observe & if need be set up Driver Check Points for drunk drivers or drivers check points to check & observe for operators driving under the influence, valid proper insurance & current drivers license....Officers doing this at these lots or check points would insure that OUR streets roads & or highways would be safer!

    Now it should be noted that these ideas & others are not perfect but they are better than any total ban on Snickers, M&M's, Tootsie Rolls, Cheetos, LAY'S CHIPS, 7-UP, Pepsi, Ozarka or Aquiafina Bottled Water or Bud Light!

    Remember that a City Ordinance or Law never over rules a State Law, U.S. Federal Law or The U.S. Constitution!


    Time to find REAL solutions that are LEGAL!

  • nyspanglish posted at 12:56 pm on Tue, Jan 28, 2014.

    nyspanglish Posts: 3

    @Sneezy-have you seen the public tube exit or Prince Solms park during the summer? Plenty of litter-plenty of people sitting along the river throwing their trash either on land or into the river. There are plenty of tickets that could be issued on any given summer day for the river.

  • nbhome posted at 12:38 pm on Tue, Jan 28, 2014.

    nbhome Posts: 215

    @NoWay--Are you suggesting that I move because I want clean rivers???

    Our relatives moved here in the early 1800's. I have a long history of knowing what the

    rivers should look like before they were allowed to be trashed by cans and debris.

  • nyspanglish posted at 10:21 am on Tue, Jan 28, 2014.

    nyspanglish Posts: 3

    While I was completely against the can ban when it was first passed, I have to say the river was much cleaner and family friendly this past year.

    I hope that NBPD will utilize their Officers to enforce litter and P.I. laws this summer instead of having to worry about what type of drink container I have in my (latched) cooler.

  • Sneezy posted at 10:04 am on Tue, Jan 28, 2014.

    Sneezy Posts: 122

    Enforce litter laws? If the law was turned down because the city cannot enforce laws on the river, how can they enforce the litter laws on the river? Again people commenting without thinking. For years the city (and everyone else) has asked the outfitters to help out. No response until the city started enforcing the "unconstitutional" laws they created. Now that we are back to square one, do you think they will cooperate now? Slim chance on that.[wink]

  • Sulphurbound posted at 8:43 am on Tue, Jan 28, 2014.

    Sulphurbound Posts: 33

    @nbhome.... Outfitters will not care about the trash on or around the rivers. They would rather have a 'Houston fraternity' rent their tubes, etc. Rather than a family of five who would rent tubes, stay in local rentals, eat at local restaurants., etc. Only interested in themselves...selfish....... God help the Comal and Guadalupe and all their creatures.

  • H2O posted at 7:36 am on Tue, Jan 28, 2014.

    H2O Posts: 88

    Cynical Observer makes an excellent point!

  • i2014 posted at 6:51 am on Tue, Jan 28, 2014.

    i2014 Posts: 2

    The Mayor should be recalled for pushing this obvious unconstitutional law wasting tax payer monies.
    Why not simply enforce liter laws already on the books. Oh no, that's not good enough, let's legislate against everyone instead. Why not a car ban then since poor drivers cause traffic jams and crashes.
    As a Comal River condo owner I can attest to the drop in business since the can ban although it's not about the impact on businesses in the area. Instead it's about government overreach and it's out of control.
    After decades of fun on the rivers all of a sudden liter is a problem. I call BS. It's those high dollar residents moving in along the river bank that wanted this legislation and the Mayor was only too happy to go along with. The can ban legislated the fun out of the river just to appease a select few whiners who get their panties in a wad whenever someone is having too much fun.

  • NoWay posted at 3:32 am on Tue, Jan 28, 2014.

    NoWay Posts: 248

    Nbhome, you can afford to move.

  • NBTaxpayer posted at 10:08 pm on Mon, Jan 27, 2014.

    NBTaxpayer Posts: 1391

    Well the City has received BAD Legal Advice & Representation for many many years & The City Record in Court Cases, Law Suits & Appeals is just horrible!

    Frankly The City Council, Mayors & City Management are not impacted by these ill advised legal adventures because it is the Citizens of this City that will have to pay for all of this!

    $150,000 is being very optimistic & my guess is try $350,000 to $450,000 once it all gets added up!

    Also it should be noted that all who was fined for having a snickers bars, ice creams, hamburgers in wrappers or diabetics drinking bottled water to name just a few & all those folks with "Over Sized Coolers" will all be able to collect from The City & will be entitled to a REFUND & in fact could sue The City!

    Former Mayor Stoney Williams could be very please thanks to ill advised & misguided lack of compromise & lack of legal research!

    What WE had here was a "Failure to communicate"....City Management would not listen to reason & now sadly WE THE TAX PAYERS get to pay for it all!

    Maybe now folks will learn to work together & punish only those folks who break the littering laws, public nudity & public intoxication laws & not punish the law biding masses!

  • nbhome posted at 8:58 pm on Mon, Jan 27, 2014.

    nbhome Posts: 215

    And when the trash & cans return, let the outfitters & beer distributors explain that!!!!

  • Cynical Observer posted at 8:24 pm on Mon, Jan 27, 2014.

    Cynical Observer Posts: 1

    One of my best friends has been on the City Council of a small city for about 20 years. Over the years she's commented on things the City's outside counsel law firm did right and didn't do right.

    The voters, taxpayers and City Council in New Braunfels need to seriously look at who wrote the ordinance which has been struck down, and to seriously look at the legal reasoning expressed in an memoranda advising that the content of the ordinance was lawfully within the City's powers.

    If it was an "outside law firm" which gave the advice, then I am serious that the City Council should be looking at recovering their costs in a malpractice claim, unless the outside lawyers clearly warned the City Council that the ordinance's subject may not be within the City's powers.

    And if it's the law firm which gave the legal advice in favor of the ordinance litigating the case, then I am very uncomfortable with the law firm's conflict of interest. My friend, the CIty Councilwoman, not in New Braunfels, has seen that happen again and again, but her fellow council members have never been brave enough to tell their lawyers "You have a conflict. We relied on your advice and now we're being sued."

  • Sulphurbound posted at 6:57 pm on Mon, Jan 27, 2014.

    Sulphurbound Posts: 33

    Greedy greedy outfitters! Care more about their wallets than they do the river. Shame on you all.

  • Sneezy posted at 5:33 pm on Mon, Jan 27, 2014.

    Sneezy Posts: 122

    Don't blame the Outfitters. What a laugh. They created the mess in the first place. Since they claim it is State property, the city's taxpayers need to quit paying for cleanup and river patrol. Leave that up to the state. It will not take long before environmentalists come down and sue the state until "real stringent" laws are in place. Then the "don't blame me" outfitters will regret it.

  • NoWay posted at 4:54 pm on Mon, Jan 27, 2014.

    NoWay Posts: 248

    Well, don't blame outfitters, the city has maintained an "in charge" status and outside the lawsuit, they have been there the whole time. If it was failing, then they were failing. The mayor worked with her friends to push this and now spits in the face of our state system of laws an constitution by saying that the majority is always right? That is absolute arrogance. Show up tonight at city council and you will see more of that attitude towards the public. I guarantee it.

  • nbhome posted at 4:26 pm on Mon, Jan 27, 2014.

    nbhome Posts: 215

    It is a sad day, a really, really sad day for the rivers and people of New Braunfels. We all know what we are in for again.

  • Sneezy posted at 2:37 pm on Mon, Jan 27, 2014.

    Sneezy Posts: 122

    Even though I hate any type of ban, it sure was pleasant finally bringing my son to a nice clean river with decent people floating. Even though the Outfitters state the City does not own the rivers, they also do not. Unfortunately their greed will just destroy the tranquility of New Braunfels. I hope the State steps in and hold the Outfitters 100 percent responsible for cleaning up the river and maintain orderly conduct.

  • NBTaxpayer posted at 10:04 am on Mon, Jan 27, 2014.

    NBTaxpayer Posts: 1391

    Well as this author predicted LONG AGO was that the City was going to lose this case(s) in The Courts due to Conflicts with The U.S. Constitution & State Of Texas Laws & Legal Precedents....

    It is important to remember that there is a PECKING Order & Rule Of Order with regards to just where City Law fall into place:

    1. U.S. Constitution
    2. U.S. Federal Laws
    3. State Of Texas Laws

    It is important to note that City Laws & or Ordinances CANNOT & DO NOT Over Rule The Above especially when there is a precedent!

    Sadly once again the City of New Braunfels has LEARNED A COSTLY LESSON & The BIG Question now is what is this latest lesson going to cost!?

    Now The City Of New Braunfels ignored my opinions, advice & warnings against going forward with these ILL Advised City Ordinances BUT sadly City Council, City Manager & The Mayors chose to ignore that & instead chose take BAD legal advice & now will pay for it along with WE THE PEOPLE who pay City Taxes!

    Now once again IMHO it is in THE BEST INTERESTS OF THE CITY to discharge & dismiss the contracted law firm from San Antonio & to also review the City Legal Policy & City Attorney!

    FACT: Any further Legal Appeal or Appeals will be a HUGE waste of time & money due to a ZERO Chance of Winning!

    City Council would be wise to finally listen to Reason & The U.S. Constitution, U.S. Federal Laws & State Of Texas Laws!

    Remember that the State of Texas is a WINNER TAKE ALL STATE with regards to Lawsuits!