HomeMy WebLinkAbout05 - Amending Subsection B of Section 10.04.010 of Chapter 10.04 to define Possession of an Open ContainerQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
September 23, 2025
Agenda Item No. 5
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David Miner, Chief of Police - 949-644-3701, dminer@nbpd.org
PREPARED BY: Kelley Maslin, Sergeant - 949-644-3694, kmaslin@nbpd.org
TITLE: Ordinance No. 2025-28: Amending Subsection B of Section
10.04.010 of Chapter 10.04 to define Possession of an Open
Container
ABSTRACT -
For the City Council's consideration is the amendment of Subsection B of Section
10.04.010 (Drinking in Public) of Chapter 10.04 (Intoxicating Liquor) of the Newport Beach
Municipal Code (NBMC) related to the Possession of Alcoholic Beverages to further
define Possession of an Open Container.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Waive full reading, direct the City Clerk to read by title only, and introduce Ordinance
No. 2025-28: An Ordinance of the City Council of the City of Newport Beach,
California, Amending Section 10.04.010 (Drinking in Public) of Chapter 10.04
(Intoxicating Liquor) of the Newport Beach Municipal Code related to the Possession
of Alcoholic Beverages and pass to a second reading on October 14, 2025.
DISCUSSION:
It is generally prohibited for any person to possess an opened, partially consumed, or
unsealed container of alcoholic beverage in or on public streets, sidewalks, alleys,
restrooms, parking lots (public or private), beaches, piers (open to the public), parks,
vacant lots, or private property visible to the public. Regulations for drinking in public are
defined currently under NBMC Section 10.04.010 (Drinking in Public). Specifically,
Subsection B of Section 10.04.010 addresses possession of an open container of alcohol.
Recent discussions have raised questions regarding the interpretation of the term
"possession," and whether it refers to actual physical possession or also includes
constructive, joint or other types of possession, such as when an individual has control
over or access to an open container of alcohol, even if not physically held.
5-1
Ordinance No. 2025-28: Amending Subsection B of Section 10.04.010 of
Chapter 10.04 to define Possession of an Open Container
September 23, 2025
Page 2
Particularly while working beach enforcement, Police Officers often come across
individuals with open containers of alcohol on the sand next to them, or containers within
their immediate reach and vicinity.
In order to ensure clarity and consistency, the Police Department staff wishes to amend
the definition of "possession" included in Subsection B of Section 10.04.010 for the
purposes of enforcing the prohibition, including distinctions between actual, constructive,
joint, and other types of possession of alcoholic beverages in public areas.
FISCAL IMPACT:
There is no fiscal impact related to this item.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
L Cexrell►` CC3
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Ordinance No. 2025-28
Attachment B — Redline of Subsection B of Section 10.04.010 of Chapter 10.04 of the
Newport Beach Municipal Code
5-2
ATTACHMENT A
ORDINANCE NO. 2025-28
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
SECTION 10.04.010 (DRINKING IN PUBLIC) OF
CHAPTER 10.04 (INTOXICATING LIQUOR) OF THE
NEWPORT BEACH MUNICIPAL CODE RELATED TO THE
POSSESSION OF ALCOHOLIC BEVERAGES
WHEREAS, Section 200 of the City Charter, of the City of Newport Beach
("City"), vests the City Council with the authority to make and enforce all laws, rules and
regulations with respect to municipal affairs subject only to the restrictions and
limitations contained in the City Charter and the State Constitution, and the power to
exercise, or act pursuant to any and all rights, powers, and privileges or procedures
granted or prescribed by any law of the State of California;
WHEREAS, it is generally prohibited for any person to possess an opened,
partially consumed, or unsealed container of alcoholic beverage in or on public streets,
sidewalks, alleys, restrooms, parking lots (public or private), beaches, piers (open to the
public), parks, vacant lots, or private property visible to the public, without the consent of
the property owner or lawful possessor;
WHEREAS, questions have been raised regarding the interpretation of the term
"possession" as used in the prohibition, including whether it refers solely to actual
physical possession or also includes constructive, joint or other types of possession,
such as when an individual has control over or access to an open container of alcohol
even if it is not physically held; and
WHEREAS, the City Council wishes to ensure clarity and consistency in the
definition of "possession" for the purposes of enforcing the prohibition, including
distinctions between actual, constructive, joint, and other types of possession of
alcoholic beverages in public areas.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: Section 10.04.010 (Drinking in Public) of Chapter 10.04
(Intoxicating Liquor) is hereby amended and shall read as follows:
5-3
Ordinance No. 2025-
Page 2 of 4
10.04.010 Drinking in Public.
A. No person shall drink or consume any alcoholic beverage in or on any public
street or alley, public sidewalk, public or private parking lot, public restroom,
public pier, private pier open to the public upon the payment of any fee, public
beach, vacant lot, or public park or private property which is open to public view
without the consent of the owner or person in lawful possession or control of the
private property. The provisions of this section shall also apply to any beach or
public parking facility in the area commonly known as Newport Dunes.
B. No person shall possess any can, bottle or other receptacle containing any
alcoholic beverage which has been opened, or a seal broken, or the contents of
which have been partially removed, in or on any public street or alley, public
sidewalk, public or private parking lot, public restroom, public pier, private pier
open to the public upon the payment of any fee, public beach, vacant lot, or
public park, or private property which is open to public view, without the consent
of the owner or person in lawful possession or control of the private property. The
provisions of this section shall also apply to any beach or public parking facility in
the area commonly known as Newport Dunes.
C. As used in Section, the term "possess" shall include: actual possession,
which is the physical custody or control of the can, bottle or other receptacle,
such as holding or carrying an open container of alcohol; constructive
possession, which is the ability and intent to exercise control over the can, bottle
or other receptacle, even if it is not physically held, such as when an open
container is within one's immediate reach or in a personal vehicle or property
under one's control; joint possession, which is where two or more individuals
share control or custody of the can, bottle or other receptacle; or any other
circumstance in which a person knowingly exercises control or dominion over the
can, bottle or other receptacle, whether physically or through indirect means.
D. Alcoholic beverages as used in this section include alcohol, spirits, wine or
beer and which contain one-half of one percent or more of alcohol by volume,
and which is fit for beverage purposes, either alone or when distilled, mixed or
combined with other substance.
E. The provisions of this section shall not apply where the consumption or
possession is within premises located in a park or other public place for which a
license has been issued pursuant to California Business and Professions Code,
5-4
Ordinance No. 2025-
Page 3 of 4
Division 9, pursuant to an approved special event permit in compliance with
Chapter 11.03, or where the consumption or possession is within the outdoor
area of a lawfully permitted eating and drinking establishment.
F. Any person violating or failing to comply with subsection (B) of this section
shall be guilty of an infraction, and subject to punishment as set forth in this
Code.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 4: The City Council finds the introduction and adoption of this
ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly.
Section 5: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
5-5
Ordinance No. 2025-
Page 4 of 4
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
(30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 23rd day of September, 2025, and adopted on the 14th
day of October, 2025, by the following vote, to -wit. -
AYES:
NAYS:
ABSENT:
JOE STAPLETON, MAYOR
ATTEST:
MOLLY PERRY, INTERIM CITY CLERK
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
i(AltON C. HARP, CIATTORNEY
5-6
Attachment B
Redline of Subsection B of Section 10.04.010 of Chapter 10.04 of the Newport Beach
Municipal Code
5-7
10.04.010 Drinking in Public. Formatted: Font: Anal, Ligatures: None
Formatted: Font: Anal, Not Bold, Ligatures: None
P. No person shall drink or consume any alcoholic beverage in or on any public Formatted: Justified, Indent: First line: 0.5°, Space
street or alley, public sidewalk, public or private parking lot, public restroom, public After: 0 pt, Line spacing: Multiple 1.15 li
pier, private pier open to the public upon the payment of any fee, public beach, Formatted: Font: Arial, Ligatures: None
vacant lot, or public park or private property which is open to public view without
the consent of the owner or person in lawful possession or control of the private
property. The provisions of this section shall also apply to any beach or public
parking facility in the area commonly known as Newport Dunes.
B No person shall possess any can, bottle or other receptacle containing any- Formatted: Font: Arial, Ligatures: None
alcoholic beverage which has been opened, or a seal broken, or the contents of [pt,Lin,
rmatted: Justified, Indent: Left: 0.5°, Space After: 0
which have been partially removed, in or on any public street or alley, public spacing: Multiple 1.15 li
sidewalk, public or private parking lot, public restroom, public pier, private pier
open to the public upon the payment of any fee, public beach, vacant lot, or public
park, or private property which is open to public view, without the consent of the
owner or person in lawful possession or control of the private property. The
provisions of this section shall also apply to any beach or public parking facility in
the area commonly known as Newport Dunes.,
6C. As used in Section, the term "possess" shall include: actual possession,
which is the physical custody or control of the can, bottle or other receptacle, such
as holding or carrying an open container of alcohol; constructive possession, which
is the ability and intent to exercise control over the can, bottle or other receptacle,
even if it is not physically held, such as when an open container is within one's
immediate reach or in a personal vehicle or property under one's control; joint
possession, which is where two or more individuals share control or custody of the
can, bottle or other receptacle: or any other circumstance in which a person
knowingly exercises control or dominion over the can, bottle or other receptacle,
whether physically or through indirect means.
Formatted: Font: Arial, Ligatures: None
D. Alcoholic beverages as used in this section include alcohol, spirits, wine or- [ptrLine
omatted: Justified, Indent: Left: 0.5°, Space After: 0
beer and which contain one-half of one percent or more of alcohol by volume, and spacing: Multiple 1.15 li
which is fit for beverage purposes, either alone or when distilled, mixed or Formatted: Font: Arial, Ligatures: None
combined with other substance.
PE. The provisions of this section shall not apply where the consumption or Formatted: Font: Arial, Ligatures: None
possession is within premises located in a park or other public place for which a
license has been issued pursuant to California Business and Professions Code,
Division 9, pursuant to an approved special event permit in compliance with
5-8
Chapter 11.03, or where the consumption or possession is within the outdoor area
of a lawfully permitted eating and drinking establishment.
F. Any person violating or failing to comply with subsection (B) of this section Formatted: Font: Arial, Ligatures: None
shall be guilty of an infraction, and subject to punishment as set forth in this Code.
5-9