[HISTORY: Adopted by the Mayor and Council of the City of
Harrington 4-18-2016 by Ord. No.
16-03. Amendments noted where applicable.]
A.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular,
and words in the singular number include the plural. The word "shall"
is always mandatory and not merely directory.
B.
CITY
EMERGENCY
ESTABLISHMENT
JUVENILE or MINOR
OPERATOR
PARENT
PUBLIC PLACE
REMAIN
TIME OF NIGHT
YEARS OF AGE
The following words, terms and phrases, when used in this chapter,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
The City of Harrington, Delaware, with administrative offices
at 106 Dorman Street, Harrington, Delaware.
An unforeseen combination of circumstances or the resulting
state that calls for immediate action. The term includes, but is not
limited to, a fire, natural disaster, automobile accident, or any
situation requiring immediate action to prevent serious bodily injury
or loss of life.
Any privately owned place of business operated for a profit
to which the public is invited, including, but not limited to, any
place of amusement or entertainment.
Any unemancipated person under the age of 17 or, in equivalent
phrasing often herein employed, any person 16 or fewer years of age.
Any individual, firm, association, partnership, or corporation
operating, managing, or conducting any establishment. The term includes
the members or partners of an association or partnership and the officers
of a corporation.
Any person having legal custody of a juvenile:
Any place to which the public or a substantial group of the
public has access and includes, but is not limited to, streets, common
areas of schools, shopping centers, parking lots, parks, playgrounds,
transportation facilities, theaters, restaurants, shops, bowling alleys,
taverns, cafes, arcades, and similar areas that are open to the use
of the public. As a type of public place, a street is a way or place,
of whatever nature, open to the use of the public as a matter of right
for purposes of vehicular travel or, in the case of a sidewalk thereof,
for pedestrian travel. "Street" includes that legal right-of-way,
including, but not limited to, the cartway of traffic lanes, the curb,
the sidewalks, whether paved or unpaved, and any grass plots or other
grounds found within the legal right-of-way of a street.
To stay behind, to tarry, and to stay unnecessarily in a
public place, including the congregating of groups (or of interacting
minors) totaling four or more persons in which any juvenile involved
would not be using the streets for ordinary or serious purposes such
as mere passage or going home, or to fail to leave the premises of
an establishment when requested to do so by a police officer or the
operator of an establishment. To implement this provision with additional
precision and precaution, numerous exceptions are expressly defined
in this chapter. More exceptions become available with a juvenile's
increasing years and advancing maturity as appropriate in the interest
of reasonable regulation.
Based upon the prevailing standard of time, whether Eastern
standard time or Eastern daylight saving time, generally observed
at that hour by the public in the City, prima facie, the time then
observed in the City administrative offices and police station.
Continues from one birthday, such as the 16th, to (but not
including the day of) the next, such as the 17th birthday, making
it clear that 16 or fewer years of age is herein treated as equivalent
to the phrase "under 17 years of age." Similarly, for example, 11
or fewer years of age means "under 12 years of age."
It shall be unlawful for any person 16 years or fewer of age
(under 17) to be or remain in or upon a public place within the City
of Harrington for the period beginning at 10:00 p.m. and ending at
6:00 a.m.
A.
The following shall constitute valid exceptions to the operation
of this chapter:
(1)
Accompanied by parent. When a juvenile is accompanied by a parent
of such juvenile.
(2)
Accompanied by authorized adult. When a juvenile is accompanied by
an adult authorized by a parent of such juvenile to take said parent's
place in accompanying said juvenile for a designated period of time
and purpose within a specified area.
(3)
Errand directed, in writing, by parent. When the juvenile is on an
errand as directed by his/her parent, provided that such juvenile
shall have on his/her person a written note, signed by the juvenile's
parent, stating:
(4)
Emergency. When a juvenile is assisting in an emergency, including,
by way of example and not in limitation, responding as a member of
a volunteer fire company to a fire company or paramedic call.
(5)
First amendment rights. When a juvenile is exercising first amendment
rights protected by the United States Constitution, such as the free
exercise of religion, freedom of speech, and the right of assembly,
by first delivering, to the person designated by the City's Chief
of Police to receive such information, a written communication, signed
by the juvenile and countersigned, if practicable, by a parent of
the juvenile, with his/her home address and telephone number, specifying
when, where, and in what manner the juvenile will be in a public place
during hours when this chapter is applicable to said minor in the
exercise of a first amendment right specified in such communication.
(6)
Reasonable necessity. In case of reasonable necessity for the juvenile
remaining in a public place, but only after the juvenile's parent
has communicated to the Chief of Police or the person designated by
the Chief of Police to receive such notifications the facts establishing
the reasonable necessity relating to a specified public place at a
designated time for a described purpose, including points of origin
and destination. A copy of the communication, or of the police record
thereof, duly certified by the Chief of Police to be correct, with
an appropriate notation of the time it was received and of the names
and addresses of the parent and juvenile, shall be admissible evidence.
(7)
On own or neighbor's property. When a juvenile is on the sidewalk
or property where the juvenile resides, or on either side of or across
the street from the place where the juvenile resides, and the adult
owner or resident of that property has given permission for the juvenile
to be there.
(8)
Returning home within one hour of official activity. When a juvenile
is returning home from, and within one hour of, the termination or
closing of an official school, religious, or other recreational activity
supervised by adults, sponsored by the City of Harrington, a recognized
charitable, benevolent, or civic association, or a similar entity
that takes responsibility for the minor.
(9)
Special permit (individual). When authorized by special permit from
the Chief of Police carried on the person of the juvenile thus authorized,
as follows:
(a)
When necessary nighttime activities of a juvenile may be inadequately provided for by other provisions of this chapter, then recourse may be had to the Chief of Police, either for a regulation as provided in § 240-3 A(10) or for a special permit as the circumstances warrant.
(b)
Upon a finding of undue hardship and reasonable necessity for
the use of a public place to the extent warranted by a written application
signed by a juvenile and by a parent of the juvenile, if feasible,
stating: the name, age, and address of the juvenile; the name, address,
and telephone number of a parent thereof; the height, weight, sex,
color of eyes and hair, and other physical characteristics of the
juvenile; the necessity that requires the juvenile to remain upon
a public place during the curfew hours otherwise applicable and the
undue hardship that will result if such permit is not granted; the
public place; and the beginning and ending of the period of time involved,
by date and hour, the Chief of Police may grant a permit, in writing,
for the juvenile's use of a public place at such hours as in
the opinion of the Chief of Police may reasonably be necessary and
consistent with the purposes of this chapter. In an emergency, this
may be handled by prior telephone or other effective communication,
with a corresponding record being made contemporaneously by the Chief
of Police or by the person designated by the Chief of Police to act
on his/her behalf in an emergency at the police station.
(10)
Special regulation (group). When authorized by regulation issued
by the Chief of Police in other similar cases of reasonable necessity,
similarly handled but adapted to reasonably necessary nighttime activities
of more juveniles than can readily be dealt with on an individual
special permit basis, but only where such juveniles will be under
the active supervision of adults responsible for such juveniles. Normally
such regulation by the Chief of Police permitting use of public places
should be issued sufficiently in advance to permit appropriate publicity
through news media and through other agencies, such as the schools,
and shall define the activity, the scope of the use of the public
places permitted, the period of time involved, not to extend more
than one hour beyond the time for termination of the activity, and
the reason for finding that the regulation is reasonably necessary
and is consistent with the purposes of this chapter.
(11)
Employment necessity. When the juvenile is legally employed,
going to or returning home from employment, and carries a certified
card of employment, renewable each calendar month when the current
facts so warrant, dated or reissued not more than 45 days previously,
signed by the parent and employer and briefly identifying the juvenile,
the addresses and telephone numbers of the juvenile's home and
place of employment, and the juvenile's hours of employment.
The City shall prepare a form to be used by employers for purposes
of this subsection.
(12)
Interstate or intrastate travel. When the juvenile is, with
parental consent, engaged in normal interstate or intrastate travel
through the City or originating or terminating in the City.
(13)
Married. When the juvenile is married or has been married pursuant
to state law.
(14)
Operator of establishment. In the case of an operator of an
establishment, when the operator has notified the police that a juvenile
was present on the premises of the establishment during curfew hours
and refused to leave.
B.
Continuing consideration of exceptions. Each of the foregoing exceptions
and their several limitations, such as provisions for notification,
are severable, as hereinafter provided but here reemphasized, and
will be considered by Council when warranted by future experience.
A.
The foregoing exceptions to the operation of this chapter shall act
only to create a waiver of enforcement and affirmative defense(s)
to such enforcement. By authorizing such exceptions, neither the City
nor any member of the Police Department shall assume any affirmative
obligation or duty to supervise the well-being of any juvenile acting
pursuant to such authorized exception.
B.
It shall be unlawful for a parent having legal custody of a juvenile
knowingly to permit or by inefficient control to allow the juvenile
to remain in any City public place under circumstances not constituting
an exception to, or otherwise beyond the scope of, this chapter. The
term "knowingly" includes knowledge that a parent should reasonably
be expected to have concerning the whereabouts of a juvenile in that
parent's legal custody. This requirement is intended to hold
a neglectful or careless parent up to a reasonable community standard
of parental responsibility through an objective test. It shall, therefore,
be no defense that a parent was completely indifferent to the activities
or conduct or whereabouts of such juvenile.
It shall be unlawful for any operator of an establishment to
knowingly permit a juvenile to remain at the establishment under circumstances
not constituting an exception to, or otherwise beyond the scope of,
this chapter. The term "knowingly" includes knowledge that an operator
should reasonably be expected to have concerning the patrons of the
establishment. The standard for "knowingly" shall be applied through
an objective test: whether a reasonable person in the operator's
position should have known that the patron was a juvenile in violation
of this chapter.
A.
If a police officer reasonably believes that a juvenile is in a public
place in violation of this chapter, the officer shall notify the juvenile
that he/she is in violation of this chapter and shall require the
juvenile to provide his/her name, address, and telephone number and
how to contact his/her parent or guardian. In determining the age
of the juvenile and in the absence of convincing evidence, such as
a birth certificate, a police officer shall, in the first instance
of violation of the chapter, use his/her best judgment in determining
age.
B.
The police officer shall issue the juvenile a written warning that the juvenile is in violation of this chapter and order the juvenile to go promptly home. The Chief of Police shall send the parent or guardian of the juvenile written notice of the violation pursuant to § 240-6F.
C.
Police procedures shall constantly be refined in the light of experience
and may provide that the police officer may deliver to a parent or
guardian thereof a juvenile under appropriate circumstances; for example,
a juvenile of tender age, near home, whose identity and address may
readily be ascertained or are known.
D.
Notwithstanding § 240-6B, when a juvenile has received one previous written warning for violation of this chapter or a police officer has reasonable grounds to believe that the juvenile has engaged in delinquent conduct, the procedure shall then be to take the juvenile to the police station where a parent or guardian shall immediately be notified to come for the juvenile, whereupon the parent or guardian and the juvenile shall be questioned. This is intended to permit ascertainment, under constitutional safeguards, of relevant facts and to centralize responsibility in the person designated there and then on duty for accurate, effective, fair, impartial, and uniform enforcement and recording, thus making available experienced personnel and access to information and records.
E.
When a parent or guardian, immediately called, has come to take charge
of the juvenile and the appropriate information has been recorded,
the juvenile shall be released to the custody of such parent. If the
parent cannot be located or fails to take charge of the juvenile,
then the juvenile shall be released to the juvenile authorities, except
to the extent that, in accordance with police regulations approved
in advance by juvenile authorities, the juvenile may temporarily be
entrusted to an adult, neighbor, or other person who will on behalf
of a parent or guardian assume the responsibility of caring for the
juvenile pending the availability or arrival of a parent or guardian.
F.
In the case of a first violation of this chapter by a juvenile, the
Chief of Police shall, by certified mail, send to a parent or guardian
written notice of the violation, with a warning that any subsequent
violation will result in full enforcement of this chapter, including
enforcement of parental responsibility and of applicable penalties.
G.
For the first violation of this chapter by an operator of an establishment
who permits a juvenile to remain on the premises, a police officer
shall issue a written notice of the violation with a warning that
any subsequent violation will result in full enforcement of the chapter,
including enforcement of operator responsibility and of applicable
penalties.
H.
In any event the police officer shall, within 24 hours, file a written
report with the Chief of Police or shall participate, to the extent
of the information for which he/she is responsible, in the preparation
of a report on the curfew violation. It is not the intention of this
section to require extensive reports that will prevent police officers
from performing their primary police duties. The reports shall be
as simple as is reasonably possible and may be completed by Police
Department personnel other than sworn police officers.
A.
Parents.
(1)
Offenses by the parent. If, after the warning notice pursuant to § 240-6 of a first violation by a juvenile, a parent violates § 240-4 in connection with a second violation by the juvenile, this shall be treated as a first offense by the parent. For offenses by a parent, the fines shall be as provided for in Chapter 180, Municipal Fees. Any court of competent jurisdiction, upon finding a parent guilty, shall sentence the parent to pay this fine and the cost of prosecution.
(2)
Personnel costs. The parent or legal guardian having custody of a juvenile subject to this section shall be liable for all costs incurred by the City of Harrington for providing personnel to remain in the company of a juvenile who has been detained as a curfew violator if the parent or guardian does not pick up the juvenile within one hour after receiving notice from the City that the City is detaining the juvenile for a curfew violation. The amount to be paid by the parent or guardian shall be as provided for in Chapter 180, Municipal Fees.
(3)
The parent or legal guardian having custody of a juvenile subject
to this section shall be liable for any fine or condition of restitution
or reparation imposed by a court upon a curfew violator, provided
that the curfew violator has not paid the fine or made restitution
or reparation within the time ordered by the court and further provided
that the parent or legal guardian has been made a party defendant
in all enforcement proceedings against the curfew violator and shall
be served with all citations, summons, complaints, notices, and other
documents required to be served on the curfew violator defendant.
B.
Juveniles. Any juvenile who shall violate any of the provisions of
this chapter more than three times shall be reported by the Chief
of Police to the juvenile authorities as a juvenile in need of supervision,
and the Chief of Police may proceed to file such charges with the
courts as he/she may deem appropriate.
C.
Operators. If, after the warning notice pursuant to § 240-6 of a violation of this chapter, an operator of an establishment violates § 240-5 a second time, this shall be treated as a first offense by the operator. For offenses by an operator, the fines shall be as provided for in Chapter 180, Municipal Fees.
The City Manager, after consultation with the City Solicitor,
is hereby authorized to give advisory opinions, in writing, which
shall be binding and shall be adhered to by the police until the chapter
is amended in such respect, interpreting terms, phrases, parts, or
any provisions. Normally such advisory opinions shall be in response
to good-faith, signed letters addressed to the City Manager or to
a member of the City Council questioning this chapter as ambiguous,
having a potentially chilling effect on constitutional rights specifically
invoked or otherwise invalid, in all three categories with respect
to proposed conduct definitely described. This administrative remedy
must be exhausted prior to presenting to any court a question in any
of the three categories. The City Council does not intend a result
through the enforcement of this chapter that is absurd, impossible
of execution, or unreasonable. Council intends that the chapter be
held inapplicable in such cases if anywhere its application would
be unconstitutional under the Constitution of the State of Delaware
or the Constitution of the United States of America.
The City Council shall continue its evaluation and updating
of this chapter through methods including but not limited to the following:
A.
Within six months after the implementation of this chapter, the Chief
of Police shall provide the City Council with a report concerning
the effect of this chapter on crimes committed by and against minors
and of the number of warnings issued and arrests of minors, parents,
and operators hereunder and such other information as Council may
request.
B.
On a regular basis, the City Council shall receive informal reports
of all exceptional cases hereunder of reasonable necessity, the notices
of school and other activities, the special permits and the regulations
authorized above, and the advisory opinions for consideration by the
Council in further updating and continuing evaluation of this chapter.
Notice of the existence of this chapter and of the curfew regulations
established by it shall be posted in, on, or about such public or
quasi-public places as may be determined by the City Manager or the
Police Department in order that the public may be constantly informed
of the existence of this chapter and its regulations.[1]
[1]
Editor's Note: Former § 240-11, Sunset, which
provided for the termination of the chapter on 7-31-2016, was repealed
7-5-2016 by Ord. No. 16-11.
