Opinion
C.A. No. 20169.
Dated: March 14, 2001.
APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE NO. 00 CRB 1337.
GREG MACKO, Barberton Law Director, and DAVID E. FISH, Assistant Law Director, 576 W. Park Avenue, Barberton, Ohio 44203, for Appellee.
ANTHONY J. COSTELLO, Attorney at Law, 2666 S. Arlington Road, Akron, Ohio 44319-2010, for Appellant.
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Defendant, Joseph M. Rhoades, has appealed from his conviction by the Barberton Municipal Court for having an opened container of beer in a public place. We reverse.
On May 21, 2000, Defendant was cited for having an opened container of beer in a public place, in violation of Codified Ordinances of the City of Green 612.07(b)(3). Following a bench trial, Defendant was found guilty and sentenced to a fine of fifty dollars plus court costs. Defendant timely appealed and has raised three assignments of error for review. This Court will address the first two assignments of error concurrently for ease of review.
ASSIGNMENT OF ERROR I
The municipal court committed error when it found [Defendant] guilty of having an open container of alcohol in a public place because the Green City open container ordinance is not applicable to this fact pattern.
ASSIGNMENT OF ERROR II
The municipal court committed error when it found that [Defendant] was in a public place.
In his first two assignments of error, Defendant has argued that he was improperly convicted of an open container violation. This Court will construe Defendant's assignments of error as arguing that the evidence is insufficient as a matter of law to sustain his conviction.
The Supreme Court of Ohio articulated the following standard of review to determine the sufficiency of the evidence in the case of a conviction:
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386; State v. Feliciano (1996), 115 Ohio App.3d 646, 652-53.
Defendant was cited for an open container violation. Pursuant to the Codified Ordinances of the City of Green 612.07(b):
No person shall have in his or her possession an opened container of beer or intoxicating liquor in any of the following places or under any of the following circumstances:
* * *
(3) In any other public place[.]
This section closely mirrors R.C. 4301.62(B)(3).
Upon review of the evidence admitted at trial, the evidence produced was insufficient to establish all of the elements of this offense.
The testimony shows that on May 21, 2000, the Summit County Sheriff's Department was called to 5001 Massillon Road to respond to a fight. Located at 5001 Massillon Road is an apartment complex. Surrounding the apartment building are grassy areas, decks and cement areas provided for the recreational use of the residents. There is a private driveway to the apartment complex that enters off Massillon Road, wraps around the complex and then exits onto Massillon Road. Parking spaces are located along the length of the driveway. When the officers arrived, it is undisputed that Defendant was located upon the grassy area consuming a can of Budweiser beer. Deputy David Gordon testified that at some point during his questioning of Defendant, Defendant moved onto the driveway area. Defendant contends that he remained on the grassy area at all times, but he admits that he had consumed a significant amount of alcohol that day and it is possible that he had stepped onto the driveway and parking area. For the purposes of our review, this discrepancy is not relevant because the outcome would be identical in either location.
The fact that Defendant was holding and drinking from an open beer is not disputed, therefore the first portion of the code section is clearly met. However, Defendant has argued that neither the grassy areas nor the driveway surrounding the apartment complex constitute a public place. He further has argued that because he was not in a "public place" he has not violated the ordinance. This Court agrees.
Neither the Codified Ordinances of the City of Green nor the Revised Code upon which that code section is based define "public place" as it is utilized with regard to the open container provisions. We must, therefore, determine how "public place" should be defined with regard to this statute. Defendant presented testimony that the property is privately owned by Mr. Joel Helms. However, evidence that property is privately or publicly owned is not determinative of whether such property constitutes a public place. See Pruneyard Shopping Center v. Robins (1980), 447 U.S. 74, 81, 64 L.Ed.2d 741; International Society for Krishna Consciousness, Inc. v. Lee (1992), 505 U.S. 672, 120 L.Ed.2d 541; United States v. Kokinda (1990), 497 U.S. 720, 111 L.Ed.2d 571. Conversely, in its order the trial court indicated that the areas in question were made "public" by the fact that visitors and delivery people were permitted to enter upon them. This Court notes that such factors cannot logically be dispositive of the characterization of a location as a public or private place. To so hold would make all private residences public places under the law merely because mail or packages are delivered to the home or because the residents occasionally have visitors. Because there is very little caselaw in which the courts have considered what constitutes a "public place" with regard to open container laws, this Court looks to the extensive body of caselaw regarding the First Amendment issue and what constitutes a "public place" for that purpose. Upon review of the caselaw, it appears that in order for privately owned property to be deemed to be a public place, the public at large must be invited to either enter, remain on and/or cross the property. See State v. Van Dyne (1985), 26 Ohio App.3d 95; Pruneyard Shopping Center v. Robins (1980), 447 U.S. 74, 64 L.Ed.2d 741; Hudgens v. National Labor Relations Board (1976), 424 U.S. 507, 47 L.Ed.2d 196; Lloyd Corp., LTD v. Tanner (1972), 407 U.S. 551, 33 L.Ed.2d 131. This is not the case in the present fact scenario.
It was established at trial that all of the property in question is private property with respect to its ownership. There was no evidence of any type of easement or right of way that would permit others to enter upon the land. Additionally, there was testimony that only tenants and their invited guests are permitted to enter and remain on the property. All others are either asked to leave or escorted off the premises. Because the public at large is not invited to enter, remain on and/or cross the property in question, this was not a public place under the Codified Ordinances of the City of Green. In light of this Court's determination that this was not a "public place," the evidence was insufficient as a matter of law to establish a violation of the charged section. Therefore, Defendant's first and second assignments of error are sustained.
ASSIGNMENT OF ERROR III
The municipal court committed error when it found [Defendant] guilty of violating the open container ordinance because the ordinance does not clearly indicate what behavior is proscribed.
Pursuant to App.R. 12(A)(1)(c), this court's disposition of the first and second assignments of error renders Defendant's third assignment of error moot. Accordingly, it will not be addressed.
Defendant's first and second assignments of error are sustained. The judgment of the trial court is reversed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the County of Summit, Barberton Municipal Court, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellee.
Exceptions.
___________________________ LYNN C. SLABY
BAIRD, P. J., CONCURS.
Because I would interpret "public place" to include both the common areas in an apartment building as well as the parking lot attached to the apartment building, I respectfully dissent.
The majority determines the meaning of "public place" for purposes of open container laws by defining "private place." The majority's analysis turns on whether the evidence can establish that the privately owned parking lot and the apartment's common areas were truly private — was "the public at large * * * invited to either enter, remain on and/or cross the property." In support, the majority relies upon State v. Van Dyne (1985), 26 Ohio App.3d 95, Pruneyard Shopping Center v. Robins (1980), 447 U.S. 74, 64 L.Ed.2d 741, Hudgens v. National Labor Relations Board (1976), 424 U.S. 507, 47 L.Ed.2d 196, and Lloyd Corp., LTD v. Tanner (1972), 407 U.S. 551, 33 L.Ed.2d 131. I find only Van Dyne applicable. None of the other authorities define public place or concern anything related to open container laws.
In Pruneyard , supra , the United States Supreme Court sustained a state law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions without a showing that the shopping mall owners would otherwise prevent the beneficiaries of the law from reaching an audience. The Court found that the proprietors were running "a business establishment that is open to the public to come and go as they please," that the solicitations would "not likely be identified with those of the owner," and that the proprietors could "expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand." Id., at 87. In Lloyd, supra, the United States Supreme Court found that when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens, supra (holding that a private person may exclude certain speakers from his or her property without violating the First Amendment).
In Van Dyne, supra Chief Justice Moyer, then an appellate judge writing for the Tenth District, examined whether a sidewalk constitutes a public place for purposes of Ohio's open container statute — the statute upon which Green's ordinance is based. Relying upon the United States Supreme Court's finding in United States v. Grace (1983), 461 U.S. 171, wherein the Court held that a sidewalk outside the United States Supreme Court building is a public place for First Amendment purposes, the Tenth District Court held that for purposes of Ohio's open container laws, a sidewalk is a public place.
Dismissing Van Dyne's argument that "there is no threat to the health, safety, morals or general welfare of the public posed by a single person standing on a public sidewalk several feet from his home with an opened can of beer[,]" Chief Justice Moyer, again, writing as an appellate judge, explained the underlying purposes of Ohio's open container statute:
The interest of the state in controlling the possession and consumption of alcohol is well-established. The state's interest in regulating possession of opened containers of alcohol in public places, while perhaps not as compelling, is similar to the state's interest in regulating the possession of thievery tools, concealed weapons, and scheduled substances. While the possession of an opened can of beer by defendant in this case perhaps posed no threat to public health or safety, it is the possibility of abuse of the substance in his opened container by others, and his potential abuse of the substance, that gives the state its right to regulate his conduct in a public place. This is the price which he pays for living in a society in which the misconduct of some affects the freedom of us all. The state has a legitimate interest in controlling the places in which people may possess opened containers of liquor or beer.
Van Dyne, supra, at 96-97.
I believe the proper analysis should concern what constitutes a "public place," as opposed to what is "private." "Generally speaking, a public place is a place or area where the public, as a whole, has a right to be. It is usually a place accessible or visible to all members of the community." Annotation, Location of Offense as "Public" Within Requirement of Enactments Against Drunkeness (1966), 8 A.L.R.3d 930, fn. 1. An open apartment driveway and parking area, with no evidence of a locked or gated parking area, which is open to all comers must be viewed as a public place. Although this Court is not bound by the Ohio Revised Code in this case as a local ordinance is at issue, this conclusion is in line with rules of statutory construction such as: "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." R.C. 1.42.
In looking at rules of statutory construction, and applying a common sense definition of the term "public place," an open apartment parking lot and driveway is a place where the public has a right to be, that is accessible and visible to all. In Webster's New Collegiate Dictionary (1979) 925, "public" is defined as "a place accessible or visible to the public." The term "place" is defined as a "physical environment: space." Webster's New Collegiate Dictionary (1979) 869. Here, the apartment parking lot and common area were spaces accessible and visible to the public. Therefore, appellee was properly found to be in a public place. This conclusion is consonant with the common sense notion that apartment parking areas, driveways, and unlocked lobbies and stairwells are public places apart from privately owned or leased premises.
The Van Dyne court also employed a common sense approach to the definition of public place: "By most people, a sidewalk, which is the means by which pedestrians walk across private property, is considered to be a public place." This direct reasoning applies with equal force to this case. Like a sidewalk, the open parking lot and common areas are open to the public. The public character of an apartment parking lot is different than that of a private residence as it is not specifically owned by lessors, but rather is a shared common area.
In Curtin v. State (Md.App. 1983), 483 A.2d 81, 85, certiorari denied (1985) 302 Md. 409, the court applied the ordinary definitions of "public" and "place" and concluded that the parking lot of an apartment complex was a public place for purposes of a statute proscribing consumption of alcohol in a public place.
Along these same lines, the hallway of an apartment building has been recognized as a "public place" within contemplation of a law prohibiting being under the influence of alcohol or drugs in a public place. People v. Perez (Cal.App. 1976), 64 Cal.App.3d 297, 301.
The hallway in this case is the kind of public place contemplated in the California and New York cases. There were no locked gates or doors to keep the public from entering. Hallways and stairways of multiple dwellings are open to delivery men, service men, solicitors, visitors and other strangers, whether those hallways are interior or exterior to the buildings, and are therefore public places within the meaning of [the statute proscribing drunkenness in a public place]. In other words, a "public place" within the meaning of this subdivision is a location readily accessible to all those who wish to go there rather than a place which the general public frequents.
(Footnote omitted.) Id.
For the foregoing reasons, I would affirm the decision of the trial court.