[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.
ESTABLISHMENT
Any privately owned place of business carried on for a profit or any place of amusement or entertainment to which the public is invited.
MINOR
Any person under the age of 18 or, in equivalent phrasing often herein employed, any person 17 or less years of age.
OPERATOR
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.
PARENT
Any person having legal custody of a minor:
A. 
As a natural or adoptive parent;
B. 
As a legal guardian;
C. 
As a person who stands in loco parentis; or
D. 
As a person to whom legal custody has been given by order of court.
REMAIN
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.
STREET
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.
TIME OF NIGHT
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.
TOWNSHIP
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.
YEAR OF AGE
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:
A. 
At 10:30 p.m. during the days Sunday through Thursday inclusive; and
B. 
At 12:00 midnight during the days Friday and Saturday.
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. 
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 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. 
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. 
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 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. 
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. 
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. 
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 Upper Darby Township. This also exempts interstate travel beginning or ending in Upper Darby Township.
K. 
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. 
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. 
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. 
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. 
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. 
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. 
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. 
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.