Drinking in Public Charges, Ordinance Violation

[Az_trailblazer]

My question involves criminal law for the state of:California, Irvine.

I have a question I was charged with a citation of 4-14-114(b) (infraction circled)seven months ago. The circumstances of which were; we live in a private gate community with no access to the general public unless given authorized entry. There were two police squad cars at the enterence of our street, I decided to grab a beer and check our mail noticed said squad cars walked over and asked them if there was anything to be concerned about. They stated no they had received a noise complaint awhile ago but were upset I approached a officer with an open beer (which I had not consumed any of its contents). While asking for my ID I dropped my beer and spilled it of the officers boot inwhich he stated I'm going to site you because you got my boot dirty. I am wondering if I have legal grounds to fight this, I was not in a "public area" and did not consume any of the contents of said beverage.

[Mr. Knowitall]

There is authority that supports arguing that a gated and fenced area, closed to ordinary public access, is not a "public place", although merely having a gate is not going to meet the threshold for proving a neighborhood is not open to the public (People v Krohn (2007) 149 Cal.App.4th 1294, 58 Cal.Rptr.3d 60); absent submission of proof that your street was not open to the public it's reasonable for a finder of fact to infer that it was.

A. Alcoholic beverage includes alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, and which contains one half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances.

B. Except as provided in subsection C below, no person shall drink, ingest or otherwise consume any alcoholic beverage on any street, alley, highway, court, park, beach, place or public square, or in any automobile in any public place.

C. Subsection B above shall not apply where a permit to serve and consume alcoholic beverages has been granted by the City of Irvine. The section shall not be construed to prohibit the properly authorized sale of alcoholic beverages in a City park by persons possessing appropriate permits and licenses.

See also:

A. For the purposes of this section, the following terms shall have the following meanings:

1. Alcoholic beverage shall mean any beverage defined as an alcoholic beverage by the Alcoholic Beverage Control Act of the State of California.

2. A public parking lot or area shall include any municipal parking lot, any publicly owned parking lot, or any private parking lot which is open to the general public regardless of whether a fee is charged to use such facility.

B. It shall be unlawful for any person to have in his or her possession any bottle, can or other receptacle containing any alcoholic beverage which has been opened, or where the seal has been broken, or where the contents of such container have been partially removed, while upon any public street, sidewalk, alley, or public parking lot or area within the City of Irvine.

C. In order to enforce this section in a parking lot immediately adjacent to any retail package off-sale alcoholic beverage licensee licensed pursuant to Business and Professional Code § 23000 of the State of California, or any public sidewalk immediately adjacent to such licensed and posted premises, such parking lot must be posted with clearly visible notices which indicate that such possession of open containers of alcoholic beverages are illegal and punishable under the law.

D. Any person violating any provision of this section shall be guilty of an infraction.

The term "public place" generally means "a location readily accessible to all those who wish to go there...." (People v. Perez (1976) 64 Cal.App.3d 297, 301, 134 Cal. Rptr. 338 (Perez ).) The key consideration is whether a member of the public can access the place "without challenge." (People v. Olson (1971) 18 Cal.App.3d 592, 598, 96 Cal.Rptr. 132.) Thus, the Olson court considered a house's front yard to be a public place because "defendant, a complete stranger to [the homeowner], was able to walk through the outside area of her home to the front door without challenge." (Ibid.)

In contrast, a location guarded by a fence or locked door is not readily accessible to the public, and is not a public place. In People v. White (1991) 227 Cal.App.3d 886, 278 Cal.Rptr. 48 (White), the court refused to deem another house's front yard a public place because it was "surrounded by a three-and-a-half foot-high fence with a gate which was unlocked at the time." (Id. at p. 892, 278 Cal.Rptr. 48.) It noted "the fence, gate, and [three pet] dogs all provided challenge to public access. (Ibid.) And an interior hallway of an apartment building was considered to be a public place because "[t]here were no locked gates or doors to keep the public from entering" it. (Perez, supra, 64 Cal. App.3d at p. 301,134 Cal.Rptr. 338.)

Here, nothing reasonably suggests the apartment complex's courtyard is a public place. Rather, the record amply supports defense counsel's characterization of the courtyard as "well fortified." The front entryway is guarded by an imposing metal fence and an automatically-locking gate. Nothing in the record suggests the gate was open when the officer detained defendant. The driveway to the private parking area behind the courtyard is guarded by an electric gate, which automatically closes and locks behind cars. The electric gate was closed when the officer arrived at the apartment; he had to use his emergency key to open it.

The fences and gates certainly "challenge" the public's access to the courtyard. (White, supra, 227 Cal.App.3d at p. 892, 278 Cal.Rptr. 48.) This is true even if the front gate is periodically propped open. (See ibid, [fence and unlocked gate challenged access]; cf. Perez, supra, 64 Cal. App.3d at p. 301, 134 Cal.Rptr. 338 [apartment hallway with "no locked gates or doors" did not challenge access].) The courtyard is not readily accessible to the 64*64 public. It is not a public place. Thus, even if the officer reasonably suspected defendant was drinking beer in the courtyard—itself a doubtful proposition—the officer had no reason to suspect defendant was doing so in a public place.