Boulder Municipal Code Title V Chapter 7

Chapter 5-7: Alcohol Offenses16

5-7-1 Definitions.Go to the top

(a) For purposes of this code, “fermented malt beverage” has the same meaning as its meaning under the Colorado Beer Code.17

(b) For purposes of this code, “malt, vinous and spirituous liquor” has the same meaning as its meaning under the Colorado Liquor Code.18

5-7-2 Possession and Consumption of Alcoholic Beverages in Public Prohibited.Go to the top

(a) No person within the city limits shall possess an opened container of or consume any malt, vinous, or spirituous liquor or fermented malt beverage in public, except upon premises licensed for consumption of the liquor or beverage involved.

(b) For purposes of this section, “opened container” means any container other than an original closed container as sealed or closed for sale to the public by the manufacturer or bottler of the liquor or beverage. If an original container has been unsealed, undone, or opened in any manner, it is an opened container for purposes of this section.

(c) For purposes of this section, “in public” means:

(1) In or upon any public highway, street, alley, walk, parking lot, building, park, or other public property or place, whether in a vehicle or not;

(2) In or upon those portions of any private property upon which the public has an express or implied license to enter or remain; or

(3) In or upon any other private property without the express or implied permission of the owner or person in possession and control of such property or such person’s agent.

(d) The following property owned or managed by the city is excluded from the coverage of this section during the hours of 8:00 a.m. to 11:00 p.m.: Coot Lake, Boulder Reservoir, Flatirons Golf Course, East Mapleton Ball Fields, and Stazio Recreation Complex, but if a special event permit for the sale of liquor or fermented malt beverages has been issued for all or a portion of such property pursuant to section 12-48-101, et seq., C.R.S., then no person shall take or consume any malt, vinous, or spirituous liquor or fermented malt beverage onto or in the area designated in such permit except in accordance with such permit if a sign has been posted giving notice of the time and location of the area so restricted.

(e) It is an affirmative defense to a charge of violating this section that the premises were licensed by the city or by the State of Colorado for the consumption of the liquor or beverage involved, and any judge shall take judicial notice of the official records of such license and dismiss forthwith any charge to which this defense applies. If such dismissal is ex parte, the judge shall notify the city attorney, who may petition the court for permission to refile the charge.

(f) It is a specific defense to a charge of violating this section that:

(1) The owner of the property involved or the owner’s agent gave express permission to the accused or to members of the accused’s class to perform the acts complained of;19 or

(2) The accused was transporting the liquor or beverage from one place where it could be lawfully consumed directly and without delay to another such place, and the container was at all times during the transportation capped, corked, or otherwise reclosed with a firmly affixed waterproof lid. When the liquor or beverage was being transported in a motor vehicle, this defense is only available if the container was in the trunk or was not otherwise immediately accessible to the driver or any passenger.

(g) No person shall drive or sit in the driver’s seat of any motor vehicle, other than one carrying passengers for hire, in which a violation of subsection (a) of this section is occurring.

(h) The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, “General Penalties,” B.R.C. 1981, shall apply.

Ordinance Nos. 5003 (1986); 7831 (2012)

5-7-3 Unlawful to Sell or Give to or Procure for Minors.Go to the top

No person shall sell, serve, deliver, or give away any malt, vinous, spirituous liquor, or fermented malt beverage to any person then under the age of twenty-one years or purchase such liquor for such minor.

(Ordinance Nos. 5077 (1987); 5377 (1991))

5-7-4 Possession and Sale by Minors Unlawful.Go to the top

(a) No person under the age of twenty-one years (underage person) shall consume, possess or have under such person’s control or request that any other person purchase for such minor person or sell, serve, give away or offer for sale any ethyl alcohol. “Ethyl alcohol,” under this section, means any substance which is or contains ethyl alcohol.

(b) It is an affirmative defense to a charge of violating this section that a defendant eighteen years of age or older acted lawfully in only selling or serving ethyl alcohol within the course of employment in an establishment holding a license under state law.

(c) Prima facie evidence that a violation of this ordinance occurred within the City shall consist of:

(1) Evidence that the defendant was under the age of twenty-one years and possessed or consumed ethyl alcohol within the City; or

(2) Evidence that the defendant was under the age of twenty-one years and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere within the City.

(d) In any trial for a violation of this section, any bottle, can or any other container with labeling indicating the contents of such bottle, can or container shall be admissible into evidence, and the information contained on any label on such bottle, can or other container shall be admissible into evidence and shall not constitute hearsay. A jury or a judge, whichever is appropriate, may consider the information upon such label in determining whether the contents of the bottle, can or other container were composed in whole or in part of ethyl alcohol. A label identifying the contents of any bottle, can or other container as “beer,” “ale,” “malt beverage,” “fermented malt beverage,” “malt liquor,” “wine,” “champagne,” “whiskey” or “whisky,” “gin,” “vodka,” “tequila,” “schnapps,” “brandy,” “cognac,” “liqueur,” “cordial,” “alcohol” or “liquor” shall constitute prima facie evidence that the contents of the bottle, can or other container was composed in whole or in part of ethyl alcohol.

(e) An underage person and one or two other persons shall be immune from criminal prosecution under this section if they establish the following:

(1) One of the underage persons called 911 and reported that another underage person was in need of medical assistance due to alcohol consumption;

(2) The underage person who called 911 and, if applicable, one or two other persons acting in concert with the underage person who called 911 provided each of their names to the 911 operator;

(3) The underage person was the first person to make the 911 report; and

(4) The underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

(f) Upon the expiration of one year from the date of a conviction of a charge under this section, the defendant may petition the municipal court for an order sealing the record of such municipal court charge. The court shall grant such petition if the petitioner has not been arrested for, charged with or convicted of any felony, misdemeanor, petty offense or criminal city ordinance violation during the period of one year following the date of such petitioner’s conviction of charges under this section. Upon acquittal, dismissal or a decision not to file a charge under this section, the defendant may petition the municipal court for an order sealing the record of such municipal court charge and the court shall grant such petition.

(g) Official records of the department of public health and environment relating to the certification of breath test instruments, certification of operators and operator instructors of breath test instruments, certification of standard solutions and certification of laboratories shall be official records of the state. Copies of such records, attested by the executive director of the department of public health and environment or his deputy and accompanied by a certificate bearing the official seal for said department, which state that the executive director of the department has custody of such records, shall be admissible in all courts of record and shall constitute prima facie evidence of the information contained in such records. The official seal of the department described in this subsection may consist of a rubber stamp producing a facsimile of the seal stamped upon the document.

(h) In any judicial proceeding in any court of this state concerning a charge under this section, the court shall take judicial notice of methods of testing a person’s blood, breath, saliva or urine for the presence of alcohol and of the design and operation of devices certified by the department of public health and environment for testing a person’s blood, breath, saliva or urine for the presence of alcohol. This subsection shall not prevent the necessity of establishing during a trial that the testing devices were working properly and that such testing devices were properly operated. Nothing in this subsection shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

(i) The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, “General Penalties,” B.R.C. 1981, shall apply.

Ordinance Nos. 5077 (1987); 5377 (1991); 7752 (2010); 7778 (2011); 7831 (2012)

5-7-5 City Manager Authority to Grant Permission to Consume Alcoholic Beverages on City-Owned Property.Go to the top

(a) The city manager may grant express permission, as provided in subsection (b) of this section, to persons to consume any malt, vinous, or spirituous liquor or fermented malt beverage on City-owned property for the following special functions: athletic events, artistic events, cultural events, receptions, street closure events, or civic events.

(b) The city manager shall grant such permission to persons applying therefor if, considering the type of function and the type of alcohol to be served, the manager finds that:

(1) The time, location, route, and duration of the function are not likely to significantly interfere with public traffic, fire, or police services;

(2) The number and concentration of participants at the function are not likely to result in crowds exceeding limitations in the city fire code, chapter 10-8, “Fire Prevention Code,” B.R.C. 1981, or noise prohibited by chapter 5-9, “Noise,” B.R.C. 1981, or other significant inconvenience to the residents of the surrounding neighborhood;

(3) Underage persons are not likely to obtain malt, vinous, or spirituous liquors or fermented malt beverages served at the function;

(4) Precautions are proposed that are likely to secure and supervise the area and the participants during the function; and

(5) The applicant meets other reasonable requirements to implement the provisions of paragraphs (b)(1) through (b)(4) of this section.

(c) The city manager may adopt legislative and procedural rules for granting such permission, consistent with the criteria set forth in subsection (b) of this section.

5-7-6 Alcoholic Beverage Consumption in Massage Parlors Prohibited.Go to the top

Repealed.

(Ordinance No. 5347 (1990))

5-7-7 Preservation of Evidence Seized for Violation of This Chapter.Go to the top

(a) Any police officer who seizes any malt, vinous, or spirituous liquors or any fermented malt beverages as evidence for trial of a violation of this code shall keep such seized items in a secure place until trial according to the regulations of the chief of police.

(b) The chief of police shall destroy such evidence after the expiration of fourteen days after trial if:

(1) There was a conviction at the trial; or

(2) There was an acquittal at trial and no person has claimed the evidence in writing and produced proof of ownership.

(c) Failure to comply with the requirements of subsection (a) of this section does not constitute a ground for dismissal of charges under this code or suppression of evidence at trial.

5-7-8 Taking Fermented Malt Beverage from Premises Licensed for On-Premises Consumption Only Prohibited.Go to the top

No person shall transport or remove from premises licensed for on-premises consumption only of fermented malt beverages any fermented malt beverage. This prohibition applies to premises licensed pursuant to paragraph 4-2-3(b)(9), B.R.C. 1981, or pursuant to a fermented malt beverage special event permit issued under section 12-48-101, et seq., C.R.S. This prohibition does not apply to employees or agents of the licensee acting in accordance with lawful directions of the licensee. The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, “General Penalties,” B.R.C. 1981, shall apply.

Ordinance Nos. 5003 (1986); 7831 (2012)

5-7-9 Alcoholic Beverage on Mall on Halloween Prohibited.Go to the top

(a) No person shall possess any malt, vinous, or spirituous liquor or fermented malt beverage in or upon any public highway, street, alley, walk, parking lot, the Downtown Boulder Mall or any other public property or place, or in or upon those portions of any private property upon which the public has an express or implied license to enter or remain, within the area bounded by the north curbline of Spruce Street, the east curbline of 15th Street, the south curbline of Walnut Street, and the west curbline of 10th Street, between 6:00 p.m. October 31 and 6:00 a.m. November 1 of each year.

(b) The city manager may, by publishing a notice in a newspaper of general circulation within the City, extend the evenings on which this section is in effect to include one or more of the seven evenings immediately preceding and succeeding October 31, if the manager reasonably believes that large crowds of Halloween celebrants will appear on the mall on such evenings.

(c) Any peace officer is authorized to seize any malt, vinous, or spirituous liquor or fermented malt beverage possessed in violation of this section. If no summons or complaint is issued for the violation and if the circumstances reasonably permit, the officer may require the possessor to leave the prohibited area with the alcoholic beverage or to abandon the beverage to the officer for destruction, at such person’s option.

(d) The defenses at subsections 5-7-2(e) and (f), B.R.C. 1981, are applicable to this section.

(e) The maximum penalty for a first or second conviction within two years, based on date of violation of this section, is a fine of $500.00. For a third and each subsequent conviction within two years, based upon the date of the first violation, the general penalty provisions of section 5-2-4, “General Penalties,” B.R.C. 1981, shall apply.

 

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