[HISTORY: Adopted by the Borough Council of the Borough of
Paxtang 10-17-1987 by Ord. No. 458 (Part 8, Ch. 1, Art. B, of the 1994
Code of Ordinances). Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Curfew
Ordinance."
This is a curfew ordinance prescribing, in accordance with prevailing
community standards and regulations, for the conduct of minors on
streets at night, effectively enforced, taught in the homes, internalized
and adhered to for generations, all for the good of minors, for the
furtherance of family responsibility, and for the public good, safety
and welfare.
A.
The Borough Council believes that a curfew is a very real local need,
necessary as a significant factor and tool to minimize juvenile delinquency.
Paxtang is a highly urbanized community lying largely within a mile
and much of it within a half mile of its police station. While Paxtang
contains several business establishments, it is essentially a residential
community. There is a general community sense of the need of cessation,
at the proper time, of outdoor activities by minors on the streets,
this sense being reflected in the curfew hours declared by this chapter
which take into consideration also the danger hours for nocturnal
crime and for accumulations of minors with potential risks incident
to immaturity.[1]
B.
Council finds that residential land use predominates the Borough
and that single-family dwellings occupy the largest portion of the
residential area. Commercial recreational facilities are almost nonexistent
and outdoor facilities are generally closed for usage at the time
this chapter seeks to prevent minors from roaming the Borough streets.
C.
Council finds that there are 375 minors under 18 years of age residing
in Paxtang and enrolled in the Central Dauphin School System as of
March 1978.
D.
Council further finds that the Paxtang population is 2,096. The Borough
is principally a stable family community. Parental responsibility
for the whereabouts of children is the norm; as parental control increases
the likelihood of juvenile delinquency decreases.
For the purposes 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 Paxtang, Dauphin County, Pennsylvania, with
administrative offices at Derry and Elm Streets, Paxtang, Pennsylvania
17111.
Any privately owned place of business carried on for a profit
or any place of amusement or entertainment to which the public is
invited.
Any person under the age of 18 or, in equivalent phrasing
often employed in this chapter, any person 17 or less years of age.
Any individual, firm, association, partnership or corporation
operating, managing or conducting any establishment, and wherever
used in any clause prescribing a penalty, the term "operator" as applied
to associations or partnerships shall include the members or partners
thereof and, as applied to corporations, shall include the officers
thereof.
Any person having legal custody of a minor (i) as a natural
or adoptive parent; (ii) as a legal guardian; (iii) as a person who
stands in loco parentis; or (iv) 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) totaling 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 § 175-5, so that this is not a mere prohibitory or presence-type curfew ordinance. More and more exceptions become available with increasing years and advancing maturity as appropriate in the interest of reasonable regulations which is intended by use of the meaningful phrase "be or remain" found constitutional in Bykofski v. Borough of Middletown, 401 F. Supp. 1242 (1975).
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 or 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 be called or formally named, whether alley, avenue, court,
road or otherwise.
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 fascia, 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 18 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. Similarly, for
example, 14 or less years of age means "under 15 years of age."
It shall be unlawful for any person 17 or less years of age
(under 18) to be or remain in or upon the streets within the Borough
at night during the period ending at 6:00 a.m., beginning at 10:00
p.m. for minors 13 or less years of age and at 11:00 p.m. for minors
14 or more years of age.
In the following exceptional cases a minor on a Borough street during the nocturnal hours for which § 175-4 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 of 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 the bona fides
of such exercise by first delivering, to personnel at the Borough
Municipal Building at Derry and Elm Streets, where and by whom high
priority messages to the Mayor are regularly received, by 4:00 p.m.
on the date of such exercise, a written communication, signed by 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 the hours when
this chapter is otherwise applicable to such minor) in the exercise
of a First Amendment right specified in such communication.
D.
When the minor is on the sidewalk of a place where such minor resides
or on the sidewalk of either consenting next-door neighbors.
E.
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. In such case the minor must carry
on his person a note indicating the location, activity and time of
termination of the activity. This note is to be signed by the adult
authority in charge of the said activity and must be displayed to
any police officer upon request. This exception is to encourage (here
as in other exceptional situations) conduct on the part of minors
involved in such activities and striking a fair balance for any conflicting
interests.
F.
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 G or for a special permit as the circumstances warrant. Upon the Mayor's finding of necessity for the use of 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: 1) the name, age and address of such minor; 2) the name, address and telephone number of a parent thereof; 3) the height, weight, sex, color of eyes and hair and other physical characteristics of such minor; 4) the necessity which requires such minor to remain upon the street during the curfew hours otherwise applicable; and 5) 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.
G.
When authorized by regulation issued by the Mayor, in other similar
cases of reasonable necessity, similarly handled but adapted to necessary
nighttime activities of 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,
the scope of the use of the streets permitted, the period of time
for termination of such activity, and 30 minutes beyond the time for
termination of such activity, and the reason for finding that such
regulation is reasonably necessary to implement the purposes of this
chapter.
H.
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 Mayor and briefly
identifying the minor, the addresses of his home and of his place
of employment, and his hours of employment.
I.
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 particularly on
normal routes such as U.S. Route 83. This also exempts interstate
travel beginning or ending in the Borough.
J.
Each of the foregoing exceptions, and their several limitations such as provisions for notification, are severable, as provided in § 175-11 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 the Borough 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.
Whenever the Mayor is absent or incapacitated, the duties of
his office as charged by this chapter shall be discharged by the President
of Council or, in the absence or incapacity of the President of Council,
by the Vice President of Council in accord with the Borough Code,
8 Pa.C.S.A. § 10A08.
It shall be unlawful for a parent having legal custody of a
minor 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 the 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 standards 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.
It shall be unlawful for an operator of an establishment or
his agents or employees to knowingly permit or by inefficient control
to allow such minor to be or remain upon the property related to such
establishment under circumstances not constituting an exception to
or otherwise beyond the scope of this chapter. The term "knowingly"
includes knowledge an operator should reasonably be expected to have
concerning persons in or about his establishment.[1]
[Amended 12-15-1992 by Ord. No. 535[1]]
Prevailing community standards, and the real internalization
thereof or interpersonal sanctions therefor that in practice counts
for much, as to when minors should be off the streets, reflected in
this chapter, are hereby undergirded with the following legal sanctions:
A.
If after a warning notice of a first violation by a minor a parent violates § 175-7 (in connection with a second violation by that minor), this shall be treated as a first offense by the parent. For such parental offense, the parent, upon conviction, shall be sentenced to pay a fine of $50 and costs of prosecution, and for subsequent offenses the fine shall be successively increased by $50, being $100 for the second offense and $150 for the third offense.
B.
If after a warning notice an operator, agent or employee of an establishment violates § 175-8, that violation involving the same minor named in the warning notice, this shall be treated as a first offense by that operator, agent or employee, and he shall, upon conviction, be sentenced to pay a fine of $50 and costs of prosecution, and for subsequent offenses, the fine shall be successively increased by $50, being $100 for the second offense and $150 for the third offense.
C.
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.
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 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 him at the Borough Municipal Building,
questioning as ambiguous, as having 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 the three categories. Borough Council
does not intend as a result that it is absurd, impossible of execution
or unreasonable. It is intended that this chapter be held inapplicable
in such cases, if anywhere 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 distribution
by the Borough Secretary to each Councilman, 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.
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 chairmen 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 basis,
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 interest, important to the welfare of the people
of the Borough of Paxtang.
