neo-Prohibitionism in the ‘burg?

Brent Finnegan -- September 13th, 2007

Technically speaking, it’s legal to drink alcohol in the city. But the places you can do it, and places you’re allowed to be after you do it are few and far between.

In case you missed the story in the DNR Thursday (I did, because it wasn’t online) City Council is expected to change the open container law to give the HPD the authority to arrest people holding a beer on the sidewalk. Currently, the open container law applies only to public streets, not sidewalks. This city amendment is right along the lines of Matt Lohr’s HB1984, which “includes in the definition of public place any sidewalk adjoining highways, streets, or lanes.”

The law in the city currently states:

It shall be unlawful for any person to possess an open container, cup, can, glass, or bottle containing an alcoholic beverage in any city park or playground or on any public street in the city and or in any area open to the general public.

Violation of that ordinance could get you charged with a Class 4 misdemeanor, and a fine of $250.

It appears that the proposed inclusion of sidewalks is aimed at cracking down on JMU party-goers, but it will inevitably effect locals having Saturday afternoon barbecues in their yard. The moment you set foot on a sidewalk with a beer in your hand, you’re subject to getting arrested and charged with possession of alcohol and drinking in public.

Considering that an alcohol company is the county’s largest taxpayer, and JMU-related spending generates a tax effect of more than $7 million in revenue to local governments per year — not to mention the fact that our mayor frequently consumes alcohol and walks the sidewalks between bars downtown — one might assume that City Council would be a little more understanding about this issue, as well as the DIP issue.

The DNR article makes no mention of specific incidences that have spurred action from the Council, but Police Chief Donald Harper is pushing for the change. Harper said, “We don’t want to wait until they do something more drastic than walk around with an open container.”

Council has already given “tentative approval” to the amendment.

26 Responses to “neo-Prohibitionism in the ‘burg?”

  1. cook says:

    Just for clarity, finnegan, there are three common alcohol possession charges in Harrisonburg, and only Open Container is confined to the street.

    1. Open Container, cited above, is a minor offense – usually a summons to court and a fine.

    2. Public Intoxication (also known as Drunk in Public or DIP) is also a minor offense but often lands the accused in jail overnight and until sober. Public means visible to the public and in Harrisonburg has included riding as a passenger in a car.

    3. The more serious alcohol possession offense is Underage Possession. Any lawfully present officer can approach a person who appears to be under 21 to “investigate further.”

  2. Tim says:

    Finnegan’s observation that the mayor of Harrisonburg responsibly enjoys an alcoholic beverage every now and than is an observation that should be noted. If the leaders of our government are taking part in a government sanctioned action why shouldn’t the rest of us be able to do the same?

    I don’t know how much money the county makes off of alcohol but I’m willing to assume it’s a lot with Coors in the area, and that doesn’t take sales tax from “restaurants” into account. If we reap benefits we should deal with concisenesses. But what are the concisenesses? As long as we keep people off the roads there are very few as far as I can tell. A pedestrian will have a very hard time slamming into a anyone with fatal consequences. Not to mention the fact (which Brent has mapped out) that anything offensive a dunk person does is already covered under another law (disorderly conduct, vandalism, indecent exposer (peeing) obstruction of traffic…)

    As Cook points out, being drunk in the passenger seat of a car can be considered DIP. Walking home from a bar, instead of driving, is a DIP. Being drunk in a taxi on your way home…is a potential DIP.

    Who is out of their minds, the drunk who gets a ride home, or the HPD officer who arrests them when their friend is pulled over for a busted tail light? Is a person who drank to much some one to be helped or dangerous cargo? And if you leave your drunk friend will they just drive because you wouldn’t give them a lift?

    If anyone knows the comedian Bill Hicks they might recall a bit he did in which he related American military actions to a Jack Palance film.

    (Setting the scene) The bad ass (Mr. Palance) comes into town and runs into a local. Somehow the local offends him, nothing out of the ordinary, Palance is a bad ass cowboy. They come to a standoff.

    (Local) Hey mister I’m sorry.

    (Palance) Here’s a gun.

    (L) No Mister, I don’t want any trouble.

    (P) Pick up the gun.

    (L) Mister I don’t want any trouble, I just came in to town to buy some rock candy for the kids and some ginuum (?) for the wife.

    (P) Pick up the gun!

    (L) OK, mister but I don’t mean any harm…

    BANG

    (Palance) You saw him, he had a gun.

    Hburg: It’s ok to drink and pay us tax revenue.

    (L) Really? Well I am of age, I’ll take the city’s word for it, why would they lead me wrong…

    HPD: That’s great, bars are great, enjoy the music.

    (L) Time to go home, good thing I walked, wouldn’t want to get a DUI, those drunk drivers are so irresponsible.

    BANG

    HPD: You saw her, she was walking two blocks with alcohol in her system!

    Let’s define the real goal.

  3. Karl Magenhofer says:

    Saying that a drunk pedestrian poses no danger is ill-informed at best. I was at the old Main Street Bar and Grill on many occasions to see drunks accidentally step into the road and in front of motorists that were more than fortunate not to strike them. People don’t know how to cross the street when they are sober. Do you think they get better at it after having some drinks? Think an innocent motorist that has a person jump in front of their car will easily forget the incident? How about the round bloody indentation on their now cracked windshield? How about their name in the paper as someone involved in a fatal accident? Yep, drunk pedestrians pose no danger and can’t possibly have fatal consequences.

    I love you Tim, but I disagree with your reasoning here. I agree it is better to walk than drive, but it would have been even better not to get drunk in the first place.

    BTW, Coors is Rockingham County’s number one tax payer, so you’re right that alcohol puts some cash in the local coffers.

  4. reaganite says:

    I am not completely sure of the genesis of the change in the law by the General Assembly, but it does follow some good legal work by Bob Keefer (originally) in our local courts. Up until a couple of years ago, HPD (especially) was using “young person with cup on housing area” as the basis for citations and further investigation leading to more serious underage possession of alcohol charges. Bob was the first of the defense attorneys to realize that the open container law did not apply to sidewalks, but only to streets, parks and city land. This led to quite a few suppressed and lost cases by HPD. If this change passes, those cases will be viable again.

    Karl is right that drunk walkers can be a danger to themselves and others. But, in the grand scheme of things, do we really need more JMU students charged with alcohol- related charges than we currently have? I can tell you that the numbers are already quite large. Good for business for Cook and I though!

  5. Emmy says:

    I made a decision several years back not to drink alcohol ever, so I’m pretty ignorant about all of these laws. But, I understand that people want to drink and I’d like to see it become easier to drink responsibly. I agree that drunk pedestrians are an issue. I cannot even imagine how I would feel if I hit someone who was walking home from a bar. I don’t know the solution, but I don’t want people choosing to drive after a few beers over walking either.

    I had no idea that you could be charged with DIP if your friend was driving you home. That seems nuts to me! What’s the point of getting a DD if they are going to charge you anyway.

  6. Benjamin says:

    Question to everyone:

    From your experiences, what is more likely to get you in trouble with the HPD, walking drunk or driving drunk?

  7. Benjamin says:

    (Not us personally, but people we have known, stories we have heard. I’m not implying we are all alcoholics.)

  8. cook says:

    Benjamin, that is a tough question to answer because I cannot guess the number of folks who walk/drive while intoxicated but do NOT get stopped. Perhaps there are other variables, though, that might place a person in the “more likely” category. And certainly a DUI conviction gets a person in “more trouble” in the sense that it carries greater consequences.

  9. Marcus says:

    I’m actually surprised to hear this is new. When I lived in Pheasant Run as a student a friend came to visit. On his way down he hydroplaned and hit a guardrail on 81, but he was okay so he kept going. We went out to the parking lot to view the damage and my roommate brought his beer.

    An officer driving through came and threatened to give him open container. He cited that the parking lot, side walks and any other public place was open container. He said that we had to be on the grass of our lawn or walkway up to our house to be on our property.

    Also, I have never heard of anyone getting arrested for DIP in a passenger seat. I’ve openly admitted on two separate occasions (once in Harrisonburg, once in Northern VA) to police officers that pulled over my DD that the alcohol they smelled was from me. There was no consequence on either occasion.

    Answer to your question:
    Statistically it has to be driving drunk. Look each night at the massive amounts of students that lumber home after a night on the town with no result. I would like to see the stats though on how many DIPs are on walks home.

  10. Barnabas says:

    Karl, i wouldn’t use Main Street Bar in any part of your defense. The people coming out of Main Street Bar and Grill were also starting fights, destroying private property, vandalizing cars and stealing from parked cars. Downtown is much improved with that bar.
    Now that the HPD doesn’t have Mainstreet Bar & Grill offering them DIP’s and DUI’s on a silver platter they need a better way of keeping their quota up.

  11. Emmy says:

    I agree with that Barnabas. Main Street bar was a creature all its own. So glad its gone!

  12. finnegan says:

    There’s a related story in the DNR today:

    During the past three weeks, since students returned for a new school year, the office has received an estimated 525 charges, according to a deputy clerk.

    The violations are primarily for open containers of alcohol, underage drinking, public drunkenness, public urination and littering, the clerk said. The vast majority of tickets arrive at the office following the weekends, she said, also suggesting they were issued during back-to-school parties.

  13. Bell says:

    When I lived in Fox Hill we were having a party one night and there some cops out there. I was talking to one of them and he told me that as long as we were in our yard we were fine (as long as we were 21) but if we stepped onto the side walk we could get an open container citation. This was about 5 years ago though so things very well could have changed.

  14. Marty says:

    Ah that sucks; you can’t do anything that’s fun anymore. There’s nothing better than getting up Sunday morning, putting a case of Natty Light on my shoulder like a boombox and walking aimlessly around town throwing my empties at passing police cars.

  15. Tim says:

    I have to go to work, but will write later if anyone is still interested in this subject.

    Quick point though, to allow legal consumption of alcohol and then claim that drunkenness should not happen is a similar in to saying that cancer should be illegal. I agree, people should not get too drunk. But the world is not a perfect system and we have to deal with the reality of it in the best possible fashion. In this case I think it means not doing anything to discourage drunk walking over drunk driving.

  16. JGFitzgerald says:

    Cops don’t have a quota for drunkenness arrests. The majority of non-vehicular alcohol arrests are related to noise, safety and good sense, because people should be able to sleep at night, because people shouldn’t be allowed to stumble into the road, and because indoor plumbing was invented centuries ago.

    To the extent that officers apply the noise, safety and good sense standard in administering street justice, they would probably be applauded by the people paying their salaries. Under our system, the salaries are paid by taxes levied by a city council elected by, generally, about 3,500 people while students prepare for exams and/or graduation under the old schedule, and Thanksgiving and/or term papers under the new. The salaries are not paid by students forking over 55 cents in meals tax on a hamburger, nor will officers ever act as if they are.

  17. Jeff says:

    “but it would have been even better not to get drunk in the first place.”
    _________________________________________
    Ok folks, let’s click our heels together and try out best to leave Oz….

    This is as niave and ridiculous a goal as the NEOCON pseudo-christian movement to promote abstinance as the sole method of birth control. Get Real……..

    “Police Chief Donald Harper is pushing for the change. Harper said, “We don’t want to wait until they do something more drastic than walk around with an open container.””
    ______________________________________________

    This comment is as stupid as it is dangerous! Where will it end? Using this ignorant and oppressive logic we should also ticket people who have closed containers because after all, they’ll probably open them, and drink the contents, and god knows “We don’t want to wait until they do something more drastic than walk around with an open container.”

    Or maybe we need to stake out restaurants and the ABC stores….after all we don’t want them to open them…because “We don’t want to wait until they do something more drastic than walk around with an open container.”

    PEOPLE!!! Does this not smack of the crap logic that gave us the Patriot Act?

    Do you not understand the danger to democracy if we, as a society, start trying to legislate “potential” crimes?

    I don’t care how you rationalize it, its a dangerous, slippery road that opens us all up to abuse by “authority.”

    You’re also very hypocritical. It was Ok when you were young and partying…but now that you’re old and a prude, you want to clean up the world…..stop trying to sterilize our community…you’ll never succeed…

  18. Frank J Witt says:

    Jeff, that is why when I do decide to endulge, I drink till I float. Pretty hard to ticket me as I drift by on my way home from the west.

    Another round of great points…keep up the good work !

  19. Jeff says:

    Some day Frank, we need to float side by side…….

    To quote the great the great Jimmy Buffet…”Ah the stories we could tell..” :-)

  20. JGFitzgerald says:

    When I was young and partying — actually we called it drinking, because we thought party was a noun — we assumed that if we allowed our behavior to leave our world and intrude into the world of adults and sober citizens, that they would use the police, who served them and not us, to ruin our fun. Those were the rules because, as party was not yet a verb, there was no right to do it.

    I remember, even then, that arresting people for alcohol offenses was not a top priority and often a last resort. Keep it in the house, stay off the street, avoid businesses — it was the people who wouldn’t listen who wound up getting arrested for DIP, because cops didn’t really want to deal with a drunk in the car, booking officers don’t really want to deal with a drunk in the office, and jailers don’t really want to deal with a drunk in the holding cell. The reasons for this are legion, including but not limited to the fact that drunks are a pain in the ass to deal with, especially when they’re blathering about their rights when they should really shut up and sleep for four hours.

    Now that I am old and a prude, I expect young people to drink, and I expect them to drink foolishly until they learn better, and I expect them to have the attitude I now have by the time they’re the age I now am, by which time they will probably be shaking their heads at teens and twentysomethings who think society is being “sterilized” by open-container laws that they see as comparable to the Patriot Act. Those of us who, as early as our teen years, fought and campaigned for civil rights, for voting rights, and against the draft and the war cannot help but be amused by the idea that carrying a beer cup is a fundamental right.

    Move the magnifying glass away from the subject before it starts to smolder. And stay off the street.

  21. Jeff says:

    Joe,
    Your post shows your age…graceful as it is:-).
    First, its a question of generational semantics. While “party” is, as you appropriately observed, a noun, so is “drink.” If your generation can use the verb form “drinking” to denote the ingestion of ETOH, then is it wrong for the young folks to claim “partying” as their own vernacular? And as an aside…I don’t think anyone said that partying was a “right.”

    I agree with you about your observation of ETOH offenses in the old days, nothing sums that sentiment up better then the popular “Andy Griffith Show” and the town sot, Otis.

    There was a time in this country, that I’m sure you remember, when members of a community took care of each other. But not anymore. In todays puritanical, politically-correct society someone like Otis would be strung up by his #$%$^. I think that’s sad and counterproductive to the communal nature of human beings.

    This certainly isn’t being helped by a government that is increasingly spying on us and asking each citizen to do their “duty” by spying on their neighbor.

    Your comment, “I expect young people to drink, and I expect them to drink foolishly until they learn better” is very progressive and understanding. Unfortunately I feel that you’re in the minority.

    Most people around here don’t have the capacity for that understanding. They are hypocritical, self-righteous and judgemental who have no problem with a neo-prude/prohibition stance (Matt Lohr?)

    If more folks had your understanding then this wouldn’t be an issue.

    I ask you Joe, to reflect on the laws that you lived under in the 1950s,1960s, and 1970s and then compare them to the thousands of laws that have been passed since. Are we really that better off because of them? Wasn’t life a little easier back then? Is passing thousands and thousands of laws in pursuit of a “perfect”, “safe” society worth it?

    We are imperfect humans living in an imperfect world, why can’t we accept that?

    This current move of social sterilization and coerced conformity (the ETOH amendment being just one issue) is not healthy, stifles human need for levity and creativity, and will only lead to revolt. History has demonstrated this.

  22. JGFitzgerald says:

    Jeff,

    Do you mean the “thousands of laws” saying black people can vote and women own their own bodies? Pass a thousand more. But when somebody’s too drunk to be outside, keep him in where he can sleep it off. Knowing young people will drink isn’t progressive, any more than knowing the sun will rise is Delphic prediction. We did, you did, they will, and you can’t flaunt it and expect to walk away. Not everything has to be so public. Party in private, pee in a toilet, and no cleavage before 6 p.m.

  23. Jeff says:

    Of course there was, and are, good laws passed. But I would argue that for every worthwhile law passed, there probably is a hundred useless ones that also get enacted. The laws banning flute playing at stop lights, and tying an alligator to a fire hydrant come to mind. They serve to keep the politicians busy but I’m not sure that they actually serve the public.

    We are a country of laws and it doesn’t take a mathmetician to figure out that having politicians pass dozens and dozens of laws year after year will only lead to eventual overburden of authority and regulation.

    I simply ask this, since more laws and ordinances require more enforcement, is H-Burg ready, able and willing to subsidize this? I own a business in town and I can tell you my taxes are atrocious. I’m not willing to pay more. I’d rather spend these dollars fighting gang crime then chasing kids who are going thru a rite of passage. Again, its about establishing a socially acceptable line. DUI is unacceptable, period. DIP? Big deal…..there are bigger fish to fry…

    As for cleavage? What’s so bad about that?? :-)

  24. Tim says:

    Jeff “DUI is unacceptable, period. DIP? Big deal” is the perfect statement for this issue.

    The glory day stories I hear from my elders are more crazy than mine. My kids might be crazier than me, that’s ultimate justice.

    JGFiszgerald, the reason I am personally as angry as I am about the DIP laws (could you’ll tell that I’m against them?) is that they are hypocritical. Something that we legally sanction has the potential of costing people, not only a night in jail, but their long term reputation as well (most jobs ask if you’ve been convicted of a felony or…a misdomier)…these days.

    I don’t want to encourage drunkeness but I really don’t want to give any drunks a reason to drive home instead of walking.

  25. David Miller says:

    Again

    It’s legal to buy it, it’s illegal to drink it, but get this.

    The truth is that our society just can’t get enough of telling other people how to live. If I stumble out into traffic and cause an accident, obviously I’m liable. Until then, leave me and my fellow citizens alone. I’m a responsible and productive member of society. I pay my taxes and have never hurt a sole. Hell, I even vote!

    I also consume alcohol recreationally (scary word). I like beer and really love Calhoun’s beer!

    If I’ve consumed two beers from that fine establishment and walk the four blocks home to my house, I call it a good night. The law calls it a violation and technically should lock me up until my BAC regains levels below .08.

    I am probably not the target of this law change but feel it necessary to speak up. JG, I don’t see it as “fighting for my right to party”, I see it as taking a stand against people like Karl “I love you Tim, but I disagree with your reasoning here. I agree it is better to walk than drive, but it would have been even better not to get drunk in the first place.”

    Karl, love you man but that’s a value judgment (your values not mine!). You used the word “better”. I don’t think you have that right. Period. If I want to introduce two pints of Cally’s finest into my body, try telling me not to. :)

    I think you’ve got some of your priorities right Karl, keep dangerous people off the street. Call them a cab, take them home. If they can’t stand up straight call a friend. Don’t criminalize them. Criminalizing citizens is a technique used by Fascist regimes to divide and separate classes of persons in order to better control them.

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