State v. Moore

25 P.3d 398, 174 Or. App. 94, 2001 Ore. App. LEXIS 636
Court of Appeals of Oregon·Decided May 9, 2001·No. Z763659; A109708·Published·Cited by 5 cases

Opinions

[96] EDMONDS, P. J.

Defendant appeals from a conviction for drinking in public in violation of Portland City Code (PCC) 14.24.030. We affirm.

Defendant purchased a beer at Red’s Brew Pub in the Portland International Airport food court. He drank most of the beer while seated at a table in the food court. Defendant then carried his beer glass with him while shopping at another store in the airport terminal and sat down at a table in the “D and E seating area,” to wait for his wife, who was meeting passengers on an arriving flight. A Port of Portland police officer approached defendant and asked him if the glass on the table contained beer. Defendant immediately picked up the glass, drank the remaining beer, and replied, “Not anymore.” The officer concluded that defendant was intoxicated and took him into custody. Defendant was later released and cited with “Drinking in Public,” a violation of PCC 14.24.030.1

Defendant pled “not guilty.” After the state put on its case-in-chief, defendant’s counsel made a “motion for an order of dismissal” on the ground that the state had failed to prove that defendant was drinking within a public right-of-way. The trial court denied the motion, stating:

‘‘Well, I think that they meet their burden, at least to get past that point. The officer testified that this was an area for the public to wait who don’t want to go through the metal detectors. It’s a public seating area. And I think that’s enough and that it was in an airport terminal — the terminal of an airport. So, it certainly gives the inference that it is a public — it’s an area dedicated to public use. So, I’m going to deny the motion.”

Defendant then put on his case-in-chief. After hearing all the evidence, the trial court ruled:

“I find that it is a public area place and the * * * ordinances do not have a knowledge requirement. They are basically [97] unlawful for a person to drink alcoholic liquor on a public right-of-way. [Defendant] was drinking alcoholic liquor in a public right-of-way.
“There are public policy reasons for having alcoholic liquor contained within a small space. The airport is a public right-of-way, and I’m going to find [defendant] guilty.”

Defendant was fined $150, of which $50 was suspended.

Defendant appeals, arguing that the trial court erred in denying his motion.2 Specifically, he argues (1) that the trial court convicted him of a violation of the wrong ordinance — that the only ordinance applicable to his conduct was Port of Portland Ordinance 348, a provision under which he was not charged;3 (2) that he was not given notice that the area where he consumed the beer was a public right-of-way; and (3) that there was insufficient evidence to show that the area in which defendant drank his beer was a “public right-of-way,” within the meaning of PCC 14.24.030.

Defendant’s first two arguments depend on his theory that PCC 14.24.030, enacted in 1983, was implicitly repealed and replaced by Port of Portland Ordinance No. 348, enacted in 1989. The latter ordinance requires the designation of areas in which alcoholic beverages can be consumed legally. Although defendant argued generally to the trial court that there were no signs prohibiting the consumption of alcohol posted in the area in which he was arrested, we can find no mention in the record below of the doctrine of repeal by implication.4 Under OEAP 5.45, we will decline to review [98] an issue on appeal unless it is first raised to the trial court. See Holbrook v. Precision Helicopters, Inc., 162 Or App 538, 544-45, 986 P2d 646, rev den 329 Or 527 (1999). The requirement of preservation of error expressed by the rule exists so that the parties can litigate and the trial court can decide issues that may obviate the necessity for appeal. State v. Cunningham, 164 Or App 680, 687, 995 P2d 561, rev den 331 Or 283 (2000). Here, we decline to reach defendant’s first two arguments because the trial court did not have the opportunity to rule on them.

Defendant’s remaining argument is that there was insufficient evidence to show that he was within a “street, sidewalk, or other public right-of-way” when he was arrested. At trial, defendant directed the trial court’s attention to the definition of “public right of way” found in PCC 16.90.280, which is part of Title 16, the Portland city traffic code. The trial court, using the “other area dedicated for public use” portion of that definition, found that the area of the airport terminal where defendant was seated was an area dedicated for public use. However, PCC 16.90.001 provides that the definition of “public right of way” found in PCC 16.90.280 applies only to uses of that phrase in Title 16, the traffic code. Thus, PCC 16.90.280 does not govern this nontraffic matter.

Section 14.04 of the PCC provides definitions for only two terms: “alcoholic liquor” (PCC 14.04.010) and “peace officer” (PCC 14.04.020). We are not aware of any other Portland city ordinance that defines a public right-of-way for purposes of PCC 14.24.030. We turn to the standard methodology for the interpretation of the meaning of an ordinance. City of Hillsboro v. Housing Devel. Corp., 61 Or App 484, 489, 657 P2d 726 (1983) (“The same rules that govern statutory construction also apply to the construction of municipal ordinances.”). We begin with the text and context of PCC 14.24.030, and rely on dictionary definitions to provide the range of possible meanings of words in their common usage. Osborn v. PSRB, 325 Or 135, 146, 934 P2d 391 (1997). Webster’s Third New Int’l Dictionary defines “right-of-way” as:

“1 : a legal right of passage over another person’s ground; * * * 2: the area or way over which a right-of-way exists; as [99] a: a path or thoroughfare which one may lawfully use (as in crossing the property of another) : one established by persons exercising the right to pass over the property of another b : the strip of land devoted to or over which is built a public road[.]” Webster’s Third New Int’l Dictionary, 1956 (unabridged ed 1993).

The definition of “public” is:

“of, relating to, or affecting the people as an organized community : CIVIC, NATIONAL; * * * of or relating to the international community or to mankind in general: COMMON, UNIVERSAL[.]” Id. at 1836.

Thus, when those definitions are combined, the common understanding of the phrase “public right-of-way” in this context is “a path, thoroughfare, area or way that people as an organized community, the international community or humankind in general may lawfully use.”

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State v. Moore, 25 P.3d 398, 174 Or. App. 94, 2001 Ore. App. LEXIS 636 (Or. Ct. App. 2001).

25 P.3d 398 (State v. Moore) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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