Florida Keys News
Sunday, November 10, 2013
Key West toughens public booze ban after judge rejects case

The most the court system can do to David Allen Walters over drinking alcohol in public is a 60-day jail stretch, a $500 fine and another mark on his permanent record.

But when a circuit court judge tossed out the police's open container case against Walters, citing a lack of evidence, city attorneys quickly drew up paperwork to "close a perceived loophole" and make it "much clearer for enforcement purposes."

Without comment or question, the City Commission on Wednesday night unanimously approved the changes presented by Assistant City Attorney Ron Ramsingh.

However, it's not law yet. Commissioners must hold a second hearing on the ordinance Nov. 19 in order to seal the deal.

At issue for the city is to ensure the open container law is applied to people drinking alcohol on the streets rather than "the mere possession" of liquor without "evidence of consumption," according to the six-page revision accepted without question by city leaders this week.

Judge Peary Fowler dismissed the charge against Walters, ruling there wasn't enough proof that the homeless man was indeed drinking alcohol in public.

Fowler has found Walters guilty of drinking on the beach and at other public spots several times in recent years, along with finding him guilty of trespassing, resisting arrest and most recently, disorderly conduct. But the Oct. 2 drinking case didn't hold up, she decided.

"She felt the officer did not actually see the individual drink from the container," Police Chief Donie Lee said. "The city is going to appeal that case."

Police had relied on evidence from the spilled booze: odor and the sight of Walters dumping the drink.

Two witnesses told an officer Walters was imbibing but both "requested no involvement," according to the incident report.

Walter's arrest report is typical of the open container arrests Key West police make weekly, largely of homeless people.

At about 2:39 p.m. Oct. 2, Officer Derek Wallis said he was flagged down in front of Rick's Bar, 202 Duval St., where a security guard reported seeing a shirtless man with dirty blond hair and a "beer belly" holding a knife while harassing random passers-by.

The knife was pocket-sized and silver, attached to a "hammer," Wallis wrote in his report.

As David Walters, 49, described by police as tanned with uncombed hair, appeared on Duval, a Rick's security guard said, "That's the guy."

Walters was holding a clear plastic container holding a yellowish-gold liquid, the officer wrote.

Walters dumped the beverage behind a newspaper box, Wallis said, but the officer reported an alcoholic smell coming from the same spot.

Finding Walters had a history of open container warnings and arrests, Wallis confiscated the pocket knife and busted the homeless man for breaking the city's law.

Yes, it's illegal

Key West bans drinking in public and wants to add "semi-public" to the law so police can enforce it in commercially owned lots.

A few spots are exempt from the open container law: the golf course, the Key West Yacht Club, the marina area next to Garrison Bight and tourist spots at 1405 Duval St., 410 Wall St. and 529 Front St.

The island's drinking-in-public ban is often lost on visitors and the outside world, due to the sheer number of tourists allowed to roam while holding a cup of draft beer or some sweetly flavored liquor concoction.

The New York Times a year ago had to run a correction after an article on Spring Break partying mistook the visible lenience for the law:

"While residents and visitors to Key West often ''stroll the streets with beer,'' doing so is illegal -- not legal -- under the law there," the Times wrote.

Legal arguments

Ramsingh is also appealing Judge Fowler's decision to dismiss the charge against Walters.

In Key West, the tiny island with a big city homeless problem, the open container law means a great deal to the powers that be, who need laws on the books along with an available overnight shelter in order to balance the "quality of life" push with the Constitution.

Case law across Florida has been clear: Cities cannot arrest and lock up the homeless without providing an alternative, safe, free place for them to sleep.

Two days after the commission approved the open container law's revision, Chief Lee announced his officers aren't using selective enforcement of the city ordinance on homeless men and women.

"We offer warnings repeatedly to those vagrants who are out there every day disrupting the quality of life," said Lee. "They continue and repeatedly day after day bother people. Basically, they're scofflaws who don't want to comply."

Lee said his officers also hand out warnings to public drinkers, and those warnings are documented, and dismissed the idea of selective enforcement on the island.

"The tourists come here, they get warned and they're gone," Lee said.

Officer Wallis ran Walters' name through the department's computer system, via his in-car laptop, and noted "numerous encounters" with police including open container warnings and arrests before taking Walters to jail.

The revised language is aimed at making an officer's decision hold up in court.

"To tweak it, to make it better and to make sure there are no issues with it in the future," Lee said.

Instead of required evidence of someone "being under the influence of an alcoholic beverage," the revised law makes it "direct evidence of consumption of an alcoholic beverage while on public or semi-public property."

The revisions also add 10 lines of description for proof that a cup or bottle contains alcohol "shall be established by testimony that the contents or remnants therein is consistent with alcohol."

Solid testimony, the revised law says, could include "odor, texture, appearance and color in combination with the officer's observations of the violator."

A suspect's giveaways that he's been imbibing can include bloodshot eyes, slurred speech, the odor of booze or "an unsteady gait," the revision adds.

Lee disagrees with Fowler that an officer should have to witness a suspect knocking back booze in order to make an open container arrest. His officers' reports are routinely filled with details on the distinct odor, foamy texture and color of the alcoholic beverages they find.

Repeat offender

Although Walters has, so far, beaten the Oct. 2 open container charge, on Saturday he remained in the Stock Island jail without bond.

On Oct. 20, less than two weeks after his Duval Street brush with police, Walters was arrested again, on a misdemeanor count of fighting.

The incident turned into a court charge of disorderly conduct but this week was pleaded down to aggressive panhandling, another Key West city ordinance.

Walters indicated he would fight the charge on Halloween but by Wednesday, Judge Fowler had disposed of the case, complete with sentencing.

In 2011, Mayor Craig Cates led the city to bolster municipal laws against public camping, drinking and panhandling, saying officers needed more tools in order to protect and serve.

Walters is among the demographic hit hardest by the city laws.

He is legally indigent and relies on a public defender. He's a repeat offender at the county jail, where Sheriff Rick Ramsay recently said his department is carrying the largest financial burden when it comes to medical care for the homeless.

Walters on Wednesday, the same day city commissioners were beefing up the open container law, racked up yet another conviction.

The Oct. 20 arrest became his 25th since 2008, according to the Sheriff's Office, on various low-level crimes such as failure to leave an owner's property.

Walters has racked up six arrests this year, starting in January.

From January through April, Walters averaged one arrest per month.

He had three arrests in 2012, seven busts in 2011, five in 2010, three in 2009 and one in 2008, according to the Sheriff's Office.

gfilosa@keysnews.com

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