Open Container Enforcement Debate Continues In OC

OCEAN CITY – The discussion on changing the open container violation from a criminal misdemeanor to a municipal infraction continued at an Ocean City Police Commission meeting last week with further opinions being heard but little headway being made.

The consideration to change the open container law from a criminal misdemeanor to a municipal infraction has been circulating for some time now. Under the town code, it is unlawful to possess or consume alcoholic beverages “on any public street, highway, alley, sidewalk, parking lot, boardwalk, or public beach” within the town limits.

Police officers have the discretion to issue a municipal citation, a warning, or even to arrest the suspect and press criminal charges.  Changing the open container violation to a municipal infraction would rule out the potential for arrest and allow people the option to pay a fine in lieu of appearing in court.

Proponents argue that it will keep officers on the street, save court time and costs, and keep essentially “good” people from leaving Ocean City with a bad taste in their mouth from an open container arrest.

Opponents of the change support the “broken window theory”, which argues that arresting someone early in the night for an open container violation could prevent worse crimes from occurring later in the night. The “broken window theory” also considers that an arrest for an open container violation could give rise to further criminal offenses, i.e. possession of narcotics.

Police Chief Bernadette DiPino has maintained in the past the importance of preventing crimes earlier in the night through open container arrests, incidents that usually spawn from alcohol abuse. The argument maintains that those who are being compliant and respectful to officers are usually given a citation anyway.

The open container violation has been a contentious issue in the past, with complaints of officers tricking suspects into stepping onto public streets and then arresting them for open container. In 2004, 23-year-old Eden Goldman, a Canadian citizen and part-time Ocean City resident, made claims that he had been tricked into carrying an open container onto public property. Goldman allegedly was drinking a beer on his porch when two strangers called him over to ask for directions. When Goldman stepped off of his porch, beer in hand, he learned that the strangers were, in fact, undercover police officers. He was arrested and cited for carrying an open container.

The officers did not buy Goldman’s claims that he was lured off the porch. “They told me I should have put the beer down before I came over to them,” Goldman said at the time.

Trickery or not, Goldman is just one of many visitors and residents arrested in 2004 and in other years for an open container violation. In that same year, 515 of 1,542 arrests in the first 19 days of June were for open container violations.

The issue has continued into 2007, with the Police Commission discussing the potential law change at several meetings. The Police Commission last left the discussion open ended, deciding to gather more research on the issue before presenting it to the Mayor and Council.

Police Captain Kevin Kirstein presented his research to the commission last Thursday, in which he looked at 10 other resort jurisdictions to see how they handle open containers.

“Eight of the ten are the same as Ocean City,” Kirstein reported, explaining the resorts maintain an open container violation as a criminal misdemeanor as Ocean City does. He also reported that three of those resorts maintain an open container violation as a criminal misdemeanor but with the maximum penalty set as a fine.

Atlantic City, as one can imagine, was one of the resorts that did not uphold a strict policy on open containers. Panama Beach, another resort mentioned, allows for open containers, with the exception of glass bottles, on the beach but not on the streets.

After hearing Kirstein’s findings, several opinions were heard, with support for the change being heard from the mayor and council members.

Councilman Jay Hancock put his full support behind the change to municipal infraction.

“I think we’d be better served without it,” he said in favor of doing away with the arrestable aspect of the offense.

Hancock added that it would prevent officers from having “to come back to court in mid-January for an open container case that’s been postponed three times in hopes of that officer not showing.”

Hancock explained that by having open container violations set as a municipal infraction it could prevent officers from being pulled off of the streets and would also help to cut back on the amount of time officers spend in court.

“It’ll probably make for less confrontation on the Boardwalk,” he added.

Council President Joe Mitrecic said, “I’m in favor of this. I don’t think it should include minors but other than that I support doing something to change the law.”

Mitrecic added that although arresting people for open container has been taking bad people off the streets earlier; it has also been taking good people off the streets as well.

Mayor Rick Meehan also showed support.

“I realize the Police Department has an extremely difficult job and I’m not looking to make it more difficult… I really do believe there’s many cases where a citation could be issued in lieu of arrests being made,” he said.

The issue of people actually paying the municipal infraction fine arose, with questions of how to enforce payment. City Solicitor Guy Ayres explained that it could result in a civil judgment, similar to when someone sues someone else for doing a bad or incomplete job. The option to turn the matter over to a collections agency is also a possibility.

“If we have a system which has a reasonable and significant fine, many of the people will pay the fine,” Hancock said. “It will reduce court time and costs and will keep more officers on the street.”

DiPino suggested the city examine just how much court cost and time is being spent on open container violations before any decisions.

The commission was also interested in looking at specific numbers on open container violations this year and in past summers as well as looking at the number of arrests made for minors and people over the age of 21.

With no exact numbers available at that time, Meehan suggested that the issue be postponed until all valid information and data was available. The commission agreed to continue the discussion but move forward with it at another time.