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Fighting for the Right to Drink Beer on His Stoop

Next time you are sitting on your stoop enjoying a cold one, think of this story:

Fighting for the Right to Drink Beer on His Stoop
By Manny Fernandez, The New York Times (September 8, 2008)
URL: http://www.nytimes.com/2008/09/08/nyregion/08stoop.html

Kimber VanRy was sitting on his stoop in the Prospect Heights section
of Brooklyn, drinking a beer and sending e-mail messages on his
BlackBerry, when a police car slowed to a stop on the street in front of
him.

It had been a pleasant evening for Mr. VanRy, 39, who lives in a
four-story, 20-unit co-op building with his wife and two children.  He
had watched Senator Joseph R. Biden Jr.’s speech at the Democratic
convention on television, helped put his sons to bed and washed the
dishes.

The time was 11:52 p.m., the date was Aug. 27, and the beer, for the
record, was a 12-ounce bottle of Sierra Nevada.

The police officer in the driver’s seat said something to Mr. VanRy.
He left the stoop, walked to the car and, several minutes later, was
handed a small pink slip–a $25 summons for drinking in public.

Mr. VanRy, who is the president of his building’s co-op board and whose
last brush with the law was about 12 years ago, when he got a speeding
ticket in Pennsylvania, was shocked to learn that drinking a beer on his
stoop was unlawful.  He said that he and his neighbors in the building
have for years gathered on the short stoop, talking and drinking,
without officers from the 77th Precinct ever showing up.

“I think this is a real gray area,” said Mr. VanRy, an international
sales manager for a supplier of stock film footage, video and music.  “I
don’t think I was doing anything wrong.”

In Brooklyn, the borough of the brownstone, few spaces are more sacred
than the stoop, the place where the city goes to watch the city go by.
Mr. VanRy’s summons, news of which has spread on Brooklyn blogs, message
boards and in a community newspaper, The Brooklyn Paper, has stirred
debate about the legal status of stoops and stoop drinkers.

New Yorkers who enjoy drinking wine or beer on their stoops are indeed
violating the law, according to the police.

The city’s open-container law prohibits anyone from drinking an
alcoholic beverage, or possessing and intending to drink from an open
container containing an alcoholic beverage, “in any public place.”  The
law defines a public place as one “to which the public or a substantial
group of persons has access, including, but not limited to,” a sidewalk,
street or park.

Exceptions include drinking at a block party or “similar function for
which a permit has been obtained” as well as premises licensed for the
sale and consumption of alcohol.  The punishment for violations is a
fine of no more than $25 or imprisonment of up to five days, or both.

Paul J. Browne, the Police Department’s chief spokesman, said in
statement about Mr. VanRy’s summons: “The officer observed a violation.
The subject has a right to dispute it.”

Mr. VanRy will contest the summons at a court appearance in November by
pleading not guilty.  He questioned the notion that his stoop is
considered a “public place” as defined by the law.  Besides, he pointed
out, Mayor Michael R. Bloomberg was photographed by The New York Post in
May sipping a glass of wine at Brooklyn Bridge Park.

“It’s one of those laws that a lot of people know it’s there, but how
heavily it should be enforced is a question,” Mr. VanRy said.

Steve Wasserman, a lawyer with the criminal practice of the Legal Aid
Society, questioned the wording of the law, adding that legal arguments
could be made that a stoop is not a place that a “substantial group of
persons” can gain access to.

“This is an open question,” he said of the law.  “There’s also a larger
constitutional question, if a piece of your private property were being
treated as if it were a public place.  You couldn’t get arrested for
drinking that beer in your kitchen.  Now you’re sitting on your stoop.
The stoop may be more like your kitchen than your sidewalk.”

Richard Briffault, a professor at Columbia University Law School and an
expert in property and local government law, said Mr. VanRy’s summons
illustrated the thin line between private and public property.  “It’s
quite possible to be on private property and in public at the same
time,” he said.

Indeed, last year, a State Supreme Court justice in the Bronx ruled
that an apartment building lobby qualified as a “public place” in
relation to the open-container law.  A police officer had confronted a
man who was drinking a beer in the lobby of a building on the Grand
Concourse, and Justice Joseph J. Dawson ruled that the officer had
probable cause to arrest him.

The details of Mr. VanRy’s tale have fascinated his friends, neighbors,
the four lawyers who sent e-mail messages offering advice and
Brooklynites who read about the incident on local blogs.  The officer
who gave Mr. VanRy the summons asked him, for example, what brand of
beer he was drinking.  “I thought it was strange why it mattered,” Mr.
VanRy said.

Mr. VanRy’s stoop does not have a gate and is set back from the
sidewalk by a few feet, and the officer told him that if he were behind
a gate on his stoop, he would not have received a ticket.  In Mr.
VanRy’s posting that night to a message board at http://www.brooklynian.com/, he
made a point of mentioning the other officer in the police car, who, Mr.
VanRy wrote, “was playing Tetris on his iPod the whole time.”

Mr. VanRy’s building on Sterling Place is in a gritty but gentrifying
part of Prospect Heights, and Mr. VanRy knows neighborhood residents who
have been mugged.  “The question that sort of lingers in my mind is,
given all the other kinds of things that are constantly going on and how
little I see of police in the neighborhood, that this was the best use
of their 20 minutes of time?” he said of the two officers.

He has already made up his mind about whether to risk drinking on his
stoop again.  “Absolutely,” he said.

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