Is drinking on your stoop private or public?

Is drinking on your stoop private or public?

The NY Times article “Fighting for the Right to Drink Beer on His Stoop” reviews the years old, however illegal practice, of drinking a beer on the stoop of your building in the city of New York. Space is limited and for a city that makes it illegal to have your porch unswept, but it’s still illegal to use your own space for the practice of having a beer this type of regulation is ridiculous. For the 20 minutes that was spent playing tetris and giving this guy a citation, what other community good could have been practiced in that time? Here’s the piece by Manny Fernandez:

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 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.