Can I smoke on the stairs across from my apartment?
October 29, 2011 4:50 PM   Subscribe

There are some nice stairs with some sculptures on them across from my apartment (leading up to a parking garage), open to the public. People and security guards sit there and lounge and smoke cigarettes frequently (I can see from my apartment) However when I sit there or smoke cigarettes there, a security guard always tells me it is closed (no matter what time, most recently 4:30PM on a Saturday, sometimes after work like 6:30 on a Tuesday) and I cannot sit there. But isn't it public space?

I live in Oakland, CA. I'm mostly curious about public space law, even if I weren't smoking a cigarette, which I realize might violate some smoking law. Mostly, I'm wondering, if a space is public and there are other people there, what are the laws regarding a security guard selectively enforcing who can be there? Do I have a right to be there? Thanks!
posted by ejfox to Law & Government (6 answers total)
Check out the legal concept of Public Nuisance. And, no, you aren't guilty of the nuisance, they are.
posted by StickyCarpet at 5:00 PM on October 29, 2011

"Open to the public" and "public space" can be two different things. If the parking structure is private (owned by the building it serves, or a garage company), then people who park there can use it without technically trespassing, but other people who are just hanging out may be (again, technically) trespassing, and the guards are within their rights to shoo you away.
posted by rtha at 5:10 PM on October 29, 2011 [4 favorites]

When you are not smoking there/being shooed away, ask one of the guards what the logic is. Their answer may leave you feeling less harassed.
posted by Ys at 7:29 PM on October 29, 2011

Perhaps you have found a POPOS! (I assume there are some in Oakland as well as San Francisco.) Just for fun, here's a map of SF POPOS.

POPOS are usually only required to be open to the public from 9 AM to 5 PM on weekdays, and both of your examples fall outside those times. The developers who are required to manage POPOS try to discourage the public from using them because more use requires more security and maintenance on their part.

Look around -- see if you can find an identifying plaque. Either way, you should be able to enjoy the space during normal weekday hours. After work and on weekends, you're out of luck.
posted by equipoise at 11:20 PM on October 29, 2011 [2 favorites]

Here's my take on it: The security guards are watching that stairwell, either directly or through CCTV monitoring. They see you walk up from the street and sit down and light up. Therefore, they know that you do not have a car parked in the structure.

This is problematic for them, since their job is to prevent people from walking in off the street and breaking into cars. You probably don't look like a car prowler. But they probably have orders to ask anyone who doesn't have business in the garage to move along.

They also don't want people to make a habit of parking their butts on that stairwell, because then (to the mind of a security department manager) you get junkies and transients and who knows what.

Instead of saying something that will start some kind of argument about who you are and why you are there, they just tell you "It's closed." Regardless of what time it is.

In most cities the private/public property line is somewhere around the sidewalk. If this staircase is back from the sidewalk it's probably private property. The next time you see a security guard smoking out there, you can try striking up a conversation as a fellow smoker. You can no doubt get some answers, and possibly earn tacit permission to smoke there.
posted by ErikaB at 9:37 AM on October 30, 2011

"People and security guards" does not necessarily mean the public. Workers are typically allowed smoking breaks and security guards are also workers.
posted by JJ86 at 6:58 AM on October 31, 2011

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