[HISTORY: Adopted by the Township Council of the Township
of Upper Darby 6-7-1977 by Ord.
No. 2519. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Curfew
Ordinance."
The Township Council has found that the number and seriousness
of crimes committed by minors against persons and property within
the Township is increasing and has created a menace to the preservation
of public peace, safety, health, moral and welfare. The purpose of
this chapter is to prescribe, in accordance with prevailing community
standards, regulations for the conduct of minors on streets at night
for the good of minors, for the furtherance of family responsibility,
and for the public good, safety and welfare.
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.
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 herein employed, any person 17 or less years of age.
Any individual, firm, association, partnership, or corporation
operating, managing or conducting any establishment, and whenever
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:
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 § 269-5 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 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, 236 Md. 548, 204 A.2d 688, 691 (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 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.
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 Township,
prima facie the time then observed in the Township administrative
offices and police station.
The Township of Upper Darby, Delaware County, Pennsylvania,
a home rule charter community with administrative offices located
at Long Lane and Garrett Road, Upper Darby, Pennsylvania, and with
Police Administrative Offices located at 7236 West Chester Pike, Upper
Darby, Pennsylvania.
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 18-year-olds might be involved.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
It shall be unlawful for any person 17 or less years of age
to be or remain in or upon the streets within Upper Darby Township
at night during the period ending at 5:00 a.m. and beginning:
In the following exceptional cases, a minor on a Township street during the nocturnal hours for which § 269-4 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.Â
When accompanied by a parent of such minor.
B.Â
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.Â
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 the Mayor, at the Township
Municipal Building at Long Lane and Garrett Road, Upper Darby, 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 Township, 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 said minor)
in the exercise of a First Amendment right specified in such communication.
D.Â
In case of reasonable necessity, but only after such minor's parent
has communicated to the Township 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.Â
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.Â
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 probably 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 situation) conduct on the
part of minors involved in such activities and striking a fair balance
for any somewhat conflicting interests.
G.Â
When authorized, by special permit from the Mayor, carried on the person of the minor thus authorized, as follows: When normal or 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 Township, either for a regulation as provided in Subsection H 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, 70 Cal. App. 2d Supp. 862, 171 P. 2d 498, 502-503, 1945), signed by a minor and by a parent of such minor, if feasible, stating: (a) the name, age and address of such minor; (b) the name, address and telephone number of a parent thereof; (c) the height, weight, sex, color of eyes and hair and other physical characteristics of such minor; (d) the necessity which requires such minor to remain upon the streets during the curfew hours otherwise applicable; and (e) 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.Â
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
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.Â
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.Â
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 Upper Darby Township. This also
exempts interstate travel beginning or ending in Upper Darby Township.
K.Â
When the minor is 17 years of age, if and when the Mayor shall have
determined, by formal rule first reported to Township 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 Township, finding that this chapter should be relaxed,
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.Â
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 having legal custody of a
minor knowingly to permit or by inefficient control to allow such
minor to be or remain upon any Township 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Police should follow procedures consistent with the Pennsylvania
Juvenile Act, Title 42, Chapter 63, Juvenile Matters, and the Upper
Darby Police Department Policies and Operational Directives: Persons
in Custody and Prisoner Handling, police number 1101.00 XIII, Juveniles
in Custody. A policeman of the Township, 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 Township Police Station,
where a parent shall immediately be notified to come for such minor,
whereupon they shall be interrogated. This is intended to permit ascertainment,
under constitutional safeguards, of relevant facts, and to centralize
responsibility in the Sergeant 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 policeman on
the street shall in the first instance use his best judgment in determining
age.
No operator of an establishment or their agents or employees
shall knowingly permit any minor to remain upon the premises of said
establishment between the hours of 10:30 p.m. and 5:00 a.m. of the
following day, except that on Fridays and Saturdays the hours shall
be from 12:00 midnight to 5:00 a.m.
A.Â
Whenever a minor shall first violate the terms hereof it shall also
be treated as a first offense by the parent. For such first parental
offense a parent shall be fined $25. For a second subsequent offense
by a parent the fine shall be increased to $50. For a third subsequent
offense and for any succeeding offenses thereafter the fine shall
be increased to $100 for each succeeding offense. The Magisterial
District Judge, upon finding a parent guilty, shall sentence the parent
to pay such fine and the costs of prosecution, and upon refusal to
pay such fine and costs to be imprisoned in the Delaware County Jail
at Broadmeadows for a period not exceeding 10 days.
B.Â
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 42 Pa.C.S.A.
§ 6301, Juvenile Act, before the juvenile court for the treatment,
supervision and rehabilitation of such minor.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
C.Â
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 other reason the provisions of this chapter cannot be made effective by the imposing of penalties under this § 269-9.
D.Â
Any operator of an establishment and any agent or employee of any
operator who shall violate the provisions of this chapter shall be
fined not less than $25 nor more than $300 for each violation, together
with imprisonment in the Delaware County Jail at Broadmeadows for
a period not exceeding 30 days if the fine, together with the costs
of prosecution, is not paid within 10 days.
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 opinions shall be in response to good faith,
signed letters addressed to him at the Township Administration Building,
questioning: (a) as ambiguous, (b) as having a potentially chilling
effect on constitutional rights specifically invoked, or (c) 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.
Township 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.
Township Council will continue its evaluation and updating of
this chapter.
A.Â
Accordingly, there shall be compiled and informally reported to Township
Council through effective channels by such Township administrative
personnel as designated by the Mayor 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 Township Council in further updating
and continuing evaluation of this chapter.
B.Â
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 Township 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 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 Township of Upper Darby.
