[HISTORY: Adopted by the Borough Council of the Borough of
Palmyra 2-11-1980 by Ord. No. 479 (Ch. VI, Part 4, of the 1975 Borough
Code). Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Curfew
Ordinance."
A.
The Palmyra Borough Council finds that its community is principally
residential in character with a few manufacturing establishments and
small business districts. In this stable community the prevailing
standards in effect for generations teach parental responsibility
for the whereabouts of children. It is the norm that parents, for
the good of minors and the furtherance of family responsibility, have
adopted a community sense of the proper time for cessation of outdoor
activities by minors on the streets. Council finds that the Borough
of Palmyra is not overcrowded and there is available adequate indoor
living space to permit minors to healthfully occupy their time and
that there is little or nothing for minors to do outdoors but roam
the streets after the curfew hours which this chapter declares.
B.
The purpose of this chapter is to meet a very real local need and,
in accordance with the prevailing community standards, to regulate
the conduct of minors on streets at night, for the public good, safety
and welfare. The curfew hours declared by this chapter take into consideration
the danger hours for nocturnal crime and the accumulation of minors
with potential risks incident to immaturity. The sanctions of this
chapter to enforce parental responsibility for the whereabouts of
children, it is believed, have been proven effective in other communities
to increase parental control and as a direct result decreased the
likelihood of juvenile delinquency.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meanings given herein.
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.
The Borough of Palmyra, Lebanon County, Pennsylvania, with
administrative offices at 325 South Railroad Street, Palmyra, Pennsylvania
17078.
Any person under the age of 18, or in equivalent phrasing
often herein employed, any person 17 years or less years of age.
Any person having legal custody of a minor as a natural or
adoptive parent, as a legal guardian, as a person who stands in loco
parentis of or as a person to whom legal custody has been given by
order of court.
To stay behind, to tarry and to stay unnecessarily upon the streets, including the congregating of groups (or of interacting minors) totalling four or more persons in which any minor involved would not be using the streets for ordinary or serious purposes, such as mere passage or going home. To implement that thought with additional precision and precaution, numerous exceptions are expressly defined in § 152-5 of this chapter. More and more exceptions become available with increasing years, as appropriate in the interest of reasonable regulation which is intended by use of the meaningful phrase "be or remain" found constitutional in Baker v. Borough of Steelton, 17 Dauph. 17 (1912), a decision properly classified in Thistlewood v. Trial Magistrate for Ocean City, 204A 2d 688, 691 (Md. 1964) as relating to a curfew ordinance of the remaining type.
A way or place, of whatsoever 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. The term
"street" includes the 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. The term "street" applies irrespective
of what it is called or formally named, whether alley, avenue, court,
road or otherwise.
Referred to herein is 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 Borough,
prima facie the time then observed in the Borough administrative offices
and police station.
Continues from one birthday, such as the 17th to (but not
including the day of) the next, such as the 18th birthday, making
it clear that 17 or less years of age is herein treated as equivalent
to the phrase "under 18 years of age," the latter phrase in practice,
unfortunately, having confused a number of persons into the mistaken
thought that eighteen-year-olds might be involved.
A.
It shall
be unlawful for any person 17 years of age to be or remain in or upon
the streets within the Borough at night during the period beginning
at 11:00 p.m. and ending at 6:00 a.m.
B.
It shall
be unlawful for any person 16 or less years of age (under 17) to be
or remain in or upon the streets within the Borough at night during
the period beginning at 10:00 p.m. and ending at 6:00 a.m.
In the following exceptional cases, a minor on a Borough street during the nocturnal hours for which § 152-4 is intended to provide the maximum limits of regulation (and a clear general guide for minors, their parents and their fellow citizens) shall not, however, be considered in violation of this chapter:
A.
When accompanied by a parent of such minor.
B.
When accompanied by an adult authorized by a parent of such minor
to take said parent's place in accompanying said minor for a
designated period or time and purpose within a specified area.
C.
When 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, such minor shall evidence bona fides of
such exercise by first delivering, to communications center personnel,
at the Borough Municipal Building, 325 South Railroad Street, Palmyra,
where and by whom high priority messages to the Mayor are regularly
received, a written communication, signed by such minor and countersigned,
if practicable, by a parent of such minor with their home address
and telephone number, addressed to the Mayor of the Borough, specifying
when, where and in what manner said minor will be on the streets at
night (during hours when this chapter is otherwise applicable to said
minor) in the exercise of a First Amendment right specified in such
communication.
D.
In case of reasonable necessity, but only after such minor's
parent has communicated to the Borough police station personnel the
facts establishing such reasonable necessity, relating to specified
streets at a designated time for a described purpose, including points
of origin and destination. A copy of such 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 address of such parent and minor, shall be admissible
evidence.
E.
When the minor is on the sidewalk of the place where such minor resides,
or on the sidewalk of either next-door neighbor, not communicating
an objection to the police officer.
F.
When returning home, by a direct route from [and within 30 minutes
of the termination of] a school activity or an activity of a religious
or other voluntary association, of which prior notice, indicating
the place and probable time of termination, has been given in writing
to, and duly filed for immediate reference by, the Chief of Police
or the officer assigned by him on duty at the police station, thus
encouraging (here as in other exceptional situations) conduct on the
part of minors involved in such activities and striking a fair balance
for any somewhat conflicting interests.
G.
When authorized by special permit from the Mayor, carried on the person of the minor thus authorized, as follows: When necessary nighttime activities of a minor may be inadequately provided for by other provisions of this chapter, then recourse may be had to the Mayor of the Borough, either for a regulation as provided in Subsection H of this section or for a special permit as the circumstances warrant. Upon the Mayor's finding of necessity for the use of the streets to the extent warranted by a written application (as judicially approved in People v. Walton, 161 P.2d 498, 502-503, Cal. App. 1945), signed by a minor and by a parent of such minor if feasible stating the name, age and address of such minor; the name, address and telephone number of a parent thereof; the height, weight, sex, color of eyes and hair and other physical characteristics of such minor; the necessity which requires such minor to remain upon the streets during the curfew hours otherwise applicable; and the street or route and the beginning and ending of the period of time involved, by date and hour, the Mayor may grant a permit in writing for the use by such minor of such streets at such hours as in the Mayor's opinion may reasonably be necessary. In an emergency, this may be handled by telephone or other effective communication, with a corresponding record being made contemporaneously, either to the Mayor or, if unavailable, to the police officer authorized by the Mayor to act on his behalf in an emergency, at the police station.
H.
When authorized, by regulation issued by the Mayor, in other similar
cases of reasonable necessity, similarly handled but adapted to necessary
nighttime activities or more minors than can readily be dealt with
on an individual special permit basis. Normally, such regulation by
the Mayor permitting use of the streets 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,
scope of the use of the streets permitted, the period of time involved
not to extend more than 30 minutes beyond the time for termination
of such activity and the reason for finding that such regulation is
reasonably necessary and is consistent with the purposes of this chapter.
I.
When the minor 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 Chief of Police and
briefly identifying the minor, the addresses of his home and of his
place of employment and his hours of employment.
J.
When the minor is, with parental consent, in a motor vehicle. This
contemplates normal travel. From excess of caution, this clearly exempts
bona fide interstate movement through the Borough of Palmyra, particularly
on normal routes such as Route 422 (Main Street), Ridge Avenue, North
Grant Street, Forge Road, Lingle Avenue and Railroad Street. This
also exempts interstate travel beginning or ending in Palmyra.
K.
When the minor is 17 years of age, if and when the Mayor shall have
determined by formal rule first reported to Borough Council, spread
upon its minutes and so reported in the press, finding the facts as
to the extent (minimal) of juvenile delinquency in such age group
permitting such rule, currently, in the best interests of said minors
and of the Borough, then the Mayor by such formal rule, covering a
period of time designated therein or until recision thereof not exceeding
one year from the date thereof, may take appropriate action excepting
designated minors, minors in a defined group or area or all minors
(as the current facts may warrant) 17 years of age at that date or
attaining 17 years of age during the period that such formal rule
is and remains in effect.
L.
Each of the foregoing exceptions and their several limitations, such
as provisions for notification, are severable, as hereinafter provided,
but here reemphasized; and additional, also severable, exceptions,
broadening with the progress toward maturity of minors, enrolled respectively
in elementary, junior high and high schools, will be considered by
Council as warranted by future experience illuminated by the views
of student government associations, school personnel, citizens, associations,
ward, precinct and neighborhood spokesmen, parents, officers and persons
in authority concerned positively with minors as well as with juvenile
delinquency.
It shall be unlawful for a parent knowingly to permit or by
inefficient control to allow such minor to be or remain upon any Borough
street under circumstances not constituting an exception to, or otherwise
beyond the scope of, this chapter. The term "knowingly" includes knowledge
which a parent should reasonably be expected to have concerning the
whereabouts of a minor in that parent's legal custody. It is
intended to continue to keep neglectful or careless parents up to
a reasonable community standard of parental responsibility through
an objective test. It shall, a fortiori, be no defense that a parent
was completely indifferent to the activities or conduct or whereabouts
of such minor.
A police officer of the Borough, upon finding or having attention
called to any minor on the streets in prima facie violation of this
chapter, normally shall take the minor to the Borough police station,
where a parent shall immediately be notified to come for such minor,
whereupon they shall be interviewed. This is intended to permit ascertainment,
under constitutional safeguards, of relevant facts, and to centralize
responsibility in the police officer there and then on duty for accurate,
effective, fair, impartial and uniform enforcement and recording,
thus making available experienced supervisory personnel, the best
of facilities and access to information and records. In the absence
of convincing evidence, such as a birth certificate, a police officer
on the street shall in the first instance use his best judgment in
determining age.
A.
Police procedures shall constantly be refined in the light of experience
and may provide, inter alia, that the police officer may deliver to
a parent thereof a minor under appropriate circumstances; for example,
a minor of a tender age near home whose identity and address may readily
be ascertained or are known.
B.
In any event such 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 is responsible in the preparation
by himself and the police officer involved in such case and in the
filing of such report within 24 hours.
C.
When a parent, immediately called, has come to take charge of the
minor and the appropriate information has been recorded, the minor
shall be released to the custody of such parent. If the parent cannot
be located or fails to take charge of the minor, then the minor shall
be released to the juvenile authorities, except to the extent that
in accordance with police regulations, approved in advance by juvenile
authorities, the minor may temporarily be entrusted to a relative,
neighbor or other person who will, on behalf of a parent, assume the
responsibility of caring for the minor pending the availability or
arrival of a parent.
Prevailing community standards and the real internalization
thereof or interpersonal sanctions therefor that in practice count
for much, as to when minors should be off the streets, reflected in
this chapter, are hereby undergirded with the following legal sanctions:
A.
Any parent who violations § 152-6 shall, upon summary conviction, be fined $50, and for each subsequent offense by a parent, the fine shall be $300. The Magisterial District Judge, upon finding a parent guilty, shall sentence the parent to pay such fine and the costs of prosecution, including the Borough's reasonable attorneys' fees, and, upon refusal to pay such fine and costs, to be imprisoned in the jail of Lebanon County for a period not exceeding 10 days.[1]
B.
Any minor who shall violate any of the provisions of this chapter
more than three times shall be reported by the Mayor to a society
or organization whose purpose it is to take charge of incorrigibles
and delinquents, and proceedings shall then be taken under the Juvenile
Act, 42 Pa.C.S.A. § 6301 et seq., before the Juvenile Court
for the treatment, supervision and rehabilitation of such minor.[2]
C.
A like procedure, before the juvenile authorities, shall be followed
in any case where the imposing of a fine or fines upon a parent shall
not be effective or where for any reason the provisions of this chapter
cannot be made effective by the imposing of penalties under this section.
Severability is intended throughout and within the provisions
of this chapter. If any provision, including, inter alia, any exception,
part, phrase or term, or the application thereof to any person or
circumstance is held invalid, the application to other persons or
circumstances shall not be affected thereby and the validity of this
chapter in any and all other respects shall not be affected thereby.
From excess of caution, the Mayor is authorized to give advisory opinions,
in writing or immediately reduced to writing, which shall be binding
and shall be adhered to by the police, until the ordinance is amended
in such respect, interpreting terms, phrases, parts or any provisions.
Normally, such advisory opinion shall be in response to good faith,
signed letters addressed to him at the Borough administration building,
questioning as ambiguous, as having a potentially chilling effect
on constitutional rights specifically invoked or as 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 said three categories. Borough Council
does not intend a result that is absurd, impossible of execution or
unreasonable. It is intended that this chapter be held inapplicable
in such cases, if any, where its application would be unconstitutional.
A constitutional construction is intended and shall be given. Council
does not intend to violate the Constitution of the Commonwealth of
Pennsylvania or the Constitution of the United States of America.
Borough Council will continue its evaluation and updating of
this chapter.
A.
Accordingly, there shall be compiled and informally reported to Borough
Council through effective channels (such as the normal monthly distribution
by the Borough Manager and Borough Secretary, to each member of Council,
the Mayor and the Borough Solicitor, of noteworthy material) all exceptional
cases hereunder of reasonable necessity, the notices of school and
other activities, the Mayor's special permits and the Mayor's
regulations hereinbefore authorized and the Mayor's advisory
opinions, for consideration by the appropriate committee and by Borough
Council in further updating and continuing evaluation of this chapter.[1]
B.
For the same reasons, as well as for the implementation beyond these
legal aspects of the basic purposes hereof, the Mayor and relevant
committees of Borough Council, through their respective chairman in
coordinated efforts, shall work with existing, and may organize, voluntary
groups, and shall stimulate volunteer leadership, in programs of research
and of action dealing constructively on neighborhood and local bases
with juvenile delinquency and the prevention, control or containment
thereof, in all its ramifications, and with practicable steps toward
the good life, and a better life, for minors 17 or less years of age,
and with the working of this chapter, community-wise and in individual
cases, as one much needed legal tool toward that end as well as for
continuing present protection of minors and of other persons and of
property and other interests important to the welfare of the people
of the Borough of Palmyra.
