[HISTORY: Adopted by the Board of Trustees of the Village
of Phoenix as indicated in article histories. Amendments noted where
applicable.]
[Adopted 9-18-2012 by L.L. No. 5-2012[1]]
[1]
Editor’s Note: This local law also provided for the
repeal of former Ch. 69, Alcoholic Beverages, adopted 12-1-1992 by
L.L. No. 9-1992, as amended.
This Chapter 69 shall be known as "Alcoholic Beverages, Consumption and Possession of Open Containers of."
A.
The Village Board finds that the possession or consumption of alcoholic
beverages in public streets and public places, except under certain
limited and expressly permitted circumstances, is detrimental to the
health, safety and welfare of the residents of the Village and visitors.
B.
The consumption of alcoholic beverages in public places contributes
to the development of unsanitary and unsafe conditions and the creation
of nuisances, including but not limited to littering, broken glass
and raucous and other disorderly behavior, which can cause a hazard
for individuals using or attempting to use those public places.
C.
Based upon generally available research and observations of citizens,
community groups and law enforcement personnel, the possession of
open containers of alcoholic beverages with intent to consume such
beverages in public places and the actual consumption of such beverages
in public places is a serious, substantial and significant cause of
persons, including those persons who are under the legal age of possessing
alcohol, becoming unruly, disruptive, disorderly and creating a condition
detrimental to the health, safety and welfare of the community.
D.
There is a significant relationship between possession of open containers
of alcoholic beverages in public places and the general health, safety
and welfare of the community.
E.
There is a significant relationship between the possession of open
containers of alcoholic beverages in public places with the intent
to consume the same and the consumption of alcoholic beverages in
public places.
In this article, the following terms shall have the meanings
indicated:
Every liquid containing alcohol, including but not limited
to beer, liquor, spirits, wine and hard cider, as more specifically
described in the New York State Alcoholic Beverage Control Law ("NYSABCL").
The New York State Liquor Authority, Division of Alcoholic
Beverage Control, or other agency authorized to regulate under the
NYSABCL.
Any bottle, can, carton, cup, glass or other receptacle usable
for holding liquid which is uncapped, uncorked, unscrewed, unsealed
or otherwise open in such a way as to permit direct consumption of
its contents.
Any individual 21 years of age or older.
Any area or building owned, operated or controlled by or
on behalf of any government, governmental agency or subdivision, municipality,
public authority or similar entity within the boundaries of the Village
of Phoenix, or portion of such area or building, which is generally
accessible to the public, including but not limited to streets, sidewalks,
parking garages and lots, parks, playgrounds, recreation areas, cemeteries,
places of employment or operations and schools and school grounds.
Same shall also include any place to which the general public or a
substantial group of persons has outside access to such as shopping
centers, church, restaurant, tavern and club parking lots and facilities.
[Amended 1-17-2017 by L.L. No. 3-2017]
No person shall consume any alcoholic beverage in or on a public
place.
No person shall possess an open container of any alcoholic beverage
in or on a public place with the intent to consume the beverage in
a public place.
[Amended 1-17-2017 by L.L. No. 3-2017]
The provisions of §§ 69-4 and 69-5 hereof shall not apply to consumption and possession of open containers of alcoholic beverages in public places:
A.
In conjunction with or as part of activities or events for which
any of the following shall apply:
(1)
A special event permit has been issued and which includes the appropriate
consent(s) to consume alcoholic beverages has been issued by an authorized
agency or officer of the Village of Phoenix or any person or organization
authorized to operate Village-owned premises or facilities in whole
or in part pursuant to a written agreement or permit with or from
the Village of Phoenix and which agreement or permit allows or authorizes
the same or the right to authorize same. A facilities use permit providing
for same shall be subject to Village Board approval based upon the
standards as follows: The Village Mayor and Board in consultation
with the Chief of Police or his designee shall determine that the
proposed special event is of such character, size, and location as
to be appropriate to and in harmony with the surrounding area and
that the public health, morals, safety, and general welfare of such
neighborhood will not be endangered by the granting of such permit,
the Village Clerk may issue a special event permit conditioned upon
the applicant's signature thereon evidencing its agreement to
comply with the terms and any special conditions of such permit. A
Village facility use agreement properly annotated may suffice as a
special event permit for purposes of this authorization.
(2)
Such event has been recognized or is regarded as a special event
including a Village-sponsored, cosponsored or duly recognized festival,
fair, block party, field days or similar organizational or community
event or gathering where such consumption and possession of alcoholic
beverages has not been expressly prohibited as per any advertisements,
publications or postings for same.
(3)
A license to sell or distribute alcoholic beverages has been issued
by the Alcoholic Beverage Control Board.
(4)
Such person or person(s) as are consuming alcoholic beverages on private or public places (excepting school property unless in connection with an event otherwise authorized herein), and are not committing such actions or conduct as prohibited under Chapter 69 hereof, nor where such actions or conduct are at, part of, or at probable risk of causing or contributing to the formation or worsening of a nuisance gathering as defined at Chapter 126 hereof.[1]
B.
Within the legitimate conduct of a religious service.
A.
Possession by a person of an open container of an alcoholic beverage
in a public place shall create a rebuttable presumption that such
person intends to consume the beverage in such place.
B.
A manufacturer's label on an open container stating that the
beverage in the container is an alcoholic beverage shall create a
rebuttable presumption that the beverage in the container is an alcoholic
beverage.
C.
A beverage that tastes or smells of a flavor or odor distinctive
to that of an alcoholic beverage shall create a rebuttable presumption
that such beverage is an alcoholic beverage.
In any prosecution, action or proceeding to enforce this section,
any law enforcement officer experienced in the handling or use of
alcoholic beverages and who has smelled or tasted the beverage in
the open container that is at issue in the prosecution, action or
proceeding shall be competent to offer opinion testimony on the issue
of whether such beverage was alcoholic.
A violation of this article shall be a violation as that term
is defined in the Penal Law. A person convicted of violating this
article shall be fined not less than $25 nor more than $250. In addition,
a second violation within 12 months of a preceding violation shall
be a misdemeanor (unclassified), as such term is defined in the Penal
Law; and in addition to the foregoing fine, a person convicted of
a second violation may be imprisoned for a term not longer than 15
days. In lieu of a fine, the court may impose an appropriate alternative
sentence; provided, however, that the alternative sentence shall not
be an unconditional discharge.
[Added 1-17-2017 by L.L.
No. 3-2017]
No person shall carry into and/or have possession of any glass
beverage (of any kind) container in any of the following public places:
public parks, playgrounds, cemeteries, recreation areas, and school
grounds, unless and to the extent expressly permitted under a special
event permit or similar express authorization of such other governmental
authority having jurisdiction over the public place, e.g., school
district if pertaining to school grounds.
