Chapter 6.33
CURFEW1
Sections:
6.33.020 Purposes and findings.
6.33.060 Parental responsibility.
6.33.080 Continuing evaluation.
6.33.090 Violation – Civil penalty.
6.33.010 Short title.
This chapter shall be known and may be cited as the “curfew ordinance”. (Ord. 1024 § 1, 1995).
6.33.020 Purposes and findings.
(1) This is an update of Chapter 6.33 OHMC, adopted in 1985, and is in accordance with prevailing community standards: 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 public good, safety and welfare. The purpose of this chapter is to conform to recent state law and preserve the public safety or reduce criminal acts by or against juveniles by establishing time and conditions when juveniles should not be present on the public streets, in the public parks, or in any other public place during specified hours.
(a) Persons under the age of 18 are vulnerable due to their lack of maturity and experience, others entice them into participating in unlawful activities and to be victims of the perpetrators of crime;
(b) The city of Oak Harbor should, if possible, provide for the protection of minors from each other and from other persons, for the enforcement of parental control over and responsibility for children, for the protection of the general public, and for the reduction of the incidence of juvenile criminal activities;
(c) There are few late night activities in Oak Harbor for children to engage in;
(d) Children have an obligation of being in school during daytime hours and late night activities are inconsistent with these obligations;
(e) A curfew for those under the age of 18 will be in the interest of the public health, safety, and general welfare and will help to attain the foregoing objectives and to diminish the undesirable impact of such conduct on the citizens of the city of Oak Harbor;
(f) Criminal acts by or against juveniles are occurring at such rates as to tax the ability of the police to assure public safety;
(g) The activity the city of Oak Harbor seeks to impact occurs between the hours of 11:00 p.m. and 5:00 a.m.;
(h) Removal of juveniles from the streets between the hours of 11:00 p.m. and 5:00 a.m. will reduce the presence of juveniles on the streets during those hours, thus reducing the number of juvenile arrests and juvenile victims and thereby reducing the need for additional police officers;
(i) In addition, removal of juveniles from public places after 11:00 p.m. will free up police to engage in traffic patrol for DWIs which increase after 11:00 p.m. and for security patrols dealing with burglary and other property crimes which are also more likely to occur in the late night hours. It is to be noted that police security patrolling is more necessary during the hours from 11:00 p.m. to 5:00 a.m. simply because fewer people are awake and in a position to provide such security protection for themselves and others;
(j) The city of Oak Harbor has 21 percent more persons zero to 20 years of age than the statewide average.2 This leads to a significant drain on the resources of the police department to protect its citizens especially at night;
(k) The city of Oak Harbor has fewer financial resources to deal with criminal conduct because of several factors:
(i) Property tax levies are relatively low as compared to other cities because a large amount of land in the city is not taxed because it is part of a federal reserve,
(ii) Sales tax collections are low compared to other cities of similar size,
(iii) Per capita income is low compared to other cities on Puget Sound;
(l) The United States Supreme Court has denied review of the United States Court of Appeals for the Fifth Circuit decision which upheld the constitutionality of a juvenile curfew ordinance and provided guidelines and suggestions for enacting curfew ordinances in QUTB v. Strauss; and
(m) In July 1994, Section 503 of Chapter 7, Laws of 1994 First Extraordinary Session, Chapter 35A.11 and specifically RCW 35A.11.210 which dealt with juvenile curfews. It restricted cities from using criminal penalties for curfew but also authorized police to take juveniles into custody for certain purposes.
(2) The council finds that the curfew meets a very real local need and has been over the years a significant factor in minimizing juvenile delinquency, and should be updated and amplified in the light of Oak Harbor’s local situation and facts.
(3) The goals of enacting this chapter include, but are not limited to, the following:
(a) Reduce the number of juvenile crime victims;
(b) Reduce the number of juvenile crimes;
(c) Reduce injury accidents involving juveniles;
(d) Increase security and traffic patrol by officers in the late night and early morning hours;
(e) Provide additional options for dealing with gang problems;
(f) Reduce juvenile peer pressure to stay out late; and, therefore
(g) Assist parents in protecting their children3 and improve school attendance.
(4) Any curfew ordinance adopted should comply with constitutional rights of minors and not unduly restrict the ability to associate, maintain jobs and participate in lawful activities. A narrowly drawn ordinance should be allowed for this to occur.
(5) Any curfew ordinance adopted should recognize the increasing ability and skill of juveniles to conduct their own affairs safely and maturely. (Ord. 1024 § 2, 1995).
6.33.030 Definitions.
For the purposes of the curfew ordinance, the following terms, phrases, words, and their derivations shall have the meaning 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.
(1) “City” means the city of Oak Harbor.
(2) “Minor” means any person under the age of 18 or, in equivalent phrasing often herein employed, any person 17 or less years of age.
(3) “Parent” means 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.
(4) “Adult extended family member” means grandparent, brother, sister, stepbrother, stepsister, uncle, aunt, or first cousin who is not a minor and who is willing and available to care for the minor.
(5) “Remain” means to stay behind, to tarry and to stay unnecessarily upon the streets, and the other locations specified herein, 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.
(6) “Street” means 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 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.
(7) “Time of night” referred to herein is based upon the prevailing standard of time, whether Pacific Standard Time or Pacific Daylight Savings Time, generally observed at that hour by the public in the name of the city of Oak Harbor, prima facie the time then observed in the police station.
(8) “Year of age” continues from one birthday, such as the seventeenth, to (but not including the day of) the next, such as the eighteenth 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. Similarly, for example, 11 or less years of age means “under 12 years of age.” (Ord. 1024 § 3, 1995).
6.33.040 Curfew for minors.
It is unlawful for any person 17 or less years of age (under 18) to be or remain in or upon the streets, public parks, docks, wharves, public buildings, except with permission of the owner or the city police department, and places of amusement, including arcades and vacant land, without permission of the owner, within the city of Oak Harbor at night during the period ending at 5:00 a.m. and beginning:
(1) At 11:00 p.m. on Sunday through Thursday; and
(2) One a.m. Saturday and Sunday. (Ord. 1024 § 4, 1995).
6.33.050 Exceptions.
The following exceptions to the curfew are provided:
(1) When accompanied by a parent;
(2) When accompanied by an adult authorized by a parent to take the parent’s place in accompanying the minor for a designated period of time and purpose within a specified area;
(3) When exercising rights of speech, religion, or assembly protected by either the Constitution of the state of Washington or the Constitution of the United States;
(4) When the minor is on the right-of-way of the street or sidewalk of the place where such minor resides, or on the right-of-way of the street or sidewalk of either nextdoor neighbor;
(5) When returning home, by a direct route from (and within 30 minutes of the termination of) a movie showing, a school activity, or an activity of a religious, charitable or educational organization (as defined under federal tax law);
(6) For lawful employment;
(7) When the minor is, with consent of a parent, in a motor vehicle traveling interstate;
(8) When a minor is acting from necessity, self-defense or emergency which compels him to leave his home;
(9) The minor is declared emancipated by a court of law and is living independently of parent or guardian. (Ord. 1024 § 5, 1995).
6.33.060 Parental responsibility.
It is unlawful for a parent of a minor knowingly to permit or, by insufficient control, to allow such minor to be or remain upon any city street under circumstances not constituting an exception to or otherwise beyond the scope of the curfew ordinance. It shall be no defense that a parent was indifferent to the activities or conduct or whereabouts of such minor. (Ord. 1024 § 6, 1995).
6.33.070 Police procedures.
(1) Investigation.
(a) A police officer of the city, upon finding a minor on the streets in apparent violation of the curfew ordinance, shall investigate for a potential citation.
(b) In the absence of convincing evidence such as a birth certificate, a police officer on the street shall in the first instance use his or her best judgment in determining age.
(2) Decision to Take Into Custody. A police officer of the city shall not take a minor in violation of this chapter into custody unless one or more of the following exist:
(a) A parent or legal guardian of the minor consents;
(b) The minor consents;
(c) The minor is found in subsequent violation more than 30 minutes after the conclusion of an investigation for a violation under this chapter;
(d) The minor has a previous violation of this chapter;
(e) It is necessary for the safety and protection of the minor.
(i) It is presumed necessary to take minors into custody for their safety and protection, if they are under 14 years of age and out after midnight.
(ii) A police officer may consider the minor’s age, the location, the time, previous arrest and conviction records and any other factors that the minor is in danger.
(3) Notice at the Termination of the Investigation.
(a) If a police officer has reasonable grounds to believe a violation of this chapter has been committed by a minor and issues a citation or determines that it is reasonable to release the minor to travel home, the officer shall warn the minor that if the minor is found in subsequent violation of this chapter more than 30 minutes after the conclusion of the investigation, it shall constitute a separate violation. The minor shall be further warned that a subsequent violation more than 30 minutes after the investigation authorizes the police officer to take the minor into custody pursuant to this section.
(b) An officer taking a minor into temporary custody under this chapter shall inform the minor of the reason for such custody.
(4) Search Incident to Temporary Custody. A minor only charged with an offense under this chapter shall be searched only for purposes of officer safety.
(5) Transportation After Taking Into Custody.
(a) If it is necessary to take a minor into custody, the custody shall be temporary and shall not extend beyond the amount of time reasonably necessary to transport the minor to the minor’s home, the police station or another destination authorized by law.
(b) The officer releasing a minor into the custody of the parent shall inform the parent of the reason for taking the minor into custody and shall inform the minor and the parent of the nature and location of appropriate services available to their community.
(c) The officer may transport the minor to the police department, to the home of an adult extended family member or any other place designated by the chief of police.
(i) If the minor expresses fear or distress at the prospect of being returned to his or her home which leads the officer to believe there is a possibility that the minor is experiencing in the home some type of child abuse or neglect, as defined in RCW 26.44.020, as now law or hereafter amended; or
(ii) If it is not practical to transport the minor to his or her home; or
(iii) If there is no parent available to accept custody of the minor.
(d) The officer releasing a minor into the custody of an adult extended family member or a responsible adult shall inform the minor and the adult extended family member or responsible adult of the nature and location of appropriate services available to the community.
(6) Report. The officer making original contact with the minor shall within 24 hours file a written report.
(7) Custody at the Police Department.
(a) When a parent, immediately called, has not appeared to take charge of the minor, and there is no adult extended family member with whom the minor has a relationship and is comfortable, who is willing and available to care for the child, and the appropriate information has been recorded, the police officer shall contact the Department of Social and Health Services as per state law to make arrangements for temporary custody of the minor. If the parent or adult extended family member cannot be located, or fails to take charge of the minor, then the minor shall be released to the Department of Social and Health Services.
(b) Minors, charged under this chapter alone, may not be held in detention cells at the Oak Harbor police department.
(8) Additional Procedures. The police chief shall have the authority to make such other necessary rules for enforcement of this chapter to assure that investigations and temporary custody of a minor are carried out in a constitutional manner. (Ord. 1024 § 7, 1995).
6.33.080 Continuing evaluation.
The police chief shall periodically report to city council on the use of this curfew ordinance. (Ord. 1024 § 8, 1995).
6.33.090 Violation – Civil penalty.
(1) A violation of curfew in OHMC 6.33.040 shall be a Class 3 infraction as defined in Chapter 1.28 OHMC.
(2) Violation of OHMC 6.33.060 shall be a Class 3 infraction as defined in Chapter 1.28 OHMC. (Ord. 1717 § 19, 2015; Ord. 1024 § 9, 1995).
6.33.100 Construction.
(1) Severability is intended throughout and within the provisions of the curfew ordinance. 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 the curfew ordinance in any and all other respects shall not be affected thereby. The city council does not intend a result that is absurd, impossible of execution or unreasonable. It is intended that the curfew ordinance be held inapplicable in such cases, if any, where its application would be unconstitutional. A constitutional construction is intended and shall be given.
(2) Council does not intend to violate the Constitution of the state of Washington or the Constitution of the United States.
(3) The city council further intends to have this chapter not conflict with the applicable state laws regulating the conduct of juveniles. (Ord. 1024 § 10, 1995).
Prior legislation: Ords. 224 and 877.
35.8% of Oak Harbor’s population is under 20 years old while 29.5% of the population of the State of Washington is under 20 years old. The Sourcebook of Zip Code Demographics, Ninth Edition, CACI Marketing Systems, 1994, page 343B.
The United States Supreme Court denied review of the United States Court of Appeals for the Fifth Circuit decision which upheld these goals as constitutional and compelling state interests. QUTB v. Strauss, 11 F.3d 488, footnote 8, cert. denied 114 S.Ct. 2134 (1994).