Apartment Building Elevator Not a “Public Place” Under NYC Open Container Law

A Bronx Criminal Court judge recently concluded, in People Chavez, that “the common areas inside a residential apartment building, including its elevators, do not constitute a “public place” as defined by New York City’s “open container law”, New York City Administrative Code § 10–125.

Defendant was charged with, inter alia, Resisting Arrest and Obstructing Governmental Administration in the Second Degree after a police officer attempted to issue him a summons for holding an open container of alcohol inside an apartment building elevator.

Defendant made a motion to dismiss the charges as facially insufficient, which the court granted.  

Administrative Code § 10–125, titled “Consumption of Alcohol on Streets Prohibited,” provides, in relevant part (emphasis added):

No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.

It defines “public place” as:

A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city.

In deciding that apartment building common areas are not “public places”, the court relied on the legislature’s restrictive definition of that term (including its use of the word “streets” in its title). In addition, it reasoned:

In drafting the statute criminalizing the consumption of alcoholic beverages on the streets, the New York City Council … defined “public place” in a restrictive manner which differs significantly from the definition of that term in other New York City Administrative Code provisions. The legislative intent may be properly inferred from the title of the offense itself, “Consumption of Alcohol on Streets Prohibited” (emphasis added), a clear prohibition on the consumption of alcoholic beverages on the public streets and similar locations traditionally considered the functional equivalent of public streets, such as highways, playgrounds, sidewalks, beaches, and amusement parks. There is simply no basis to conclude that the interior common areas of residential apartment buildings, often separated from the streets by locked doors, intercoms, and “no trespassing” signs, are part of the public streets, whether the interior area is a rooftop garden, gymnasium, laundry room, hallway, lobby or elevator.

It contrasted this section’s special definition of “public place” with statutes (including other sections of the Administrative Code) that define “public place” more broadly – i.e., in a way that includes common areas inside apartment buildings.

Since Code § 10–125 specifically defines “public place” and does not incorporate any other statute’s definition of that term, the court narrowly interpreted it here.

The court also found that “the People’s expansive reading of the statute to encompass common areas of apartment buildings would create questions of proper notice to residents with respect to prohibited conduct.”

In light of its interpretation of “public place”, the court held that the accusatory instrument did not sufficiently allege that defendant was in a “public place”, and therefore that defendant resisted an “authorized arrest” (an element of the crime of resisting arrest) or that the officer was performing an “official function” (an element of the crime of obstructing governmental administration).

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