[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]
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."
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.
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.
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.
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.
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:
- ALCOHOLIC BEVERAGE
- 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").
- ALCOHOLIC BEVERAGE CONTROL BOARD
- The New York State Liquor Authority, Division of Alcoholic Beverage Control, or other agency authorized to regulate under the NYSABCL.
- OPEN CONTAINER
- 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.
- PUBLIC PLACE
- 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:
In conjunction with or as part of activities or events for which any of the following shall apply:
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.
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.
A license to sell or distribute alcoholic beverages has been issued by the Alcoholic Beverage Control Board.
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.
Within the legitimate conduct of a religious service.
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.
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.
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.