(A) Definitions. For the purposes of the section 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.
“ALLOW.” Either permit or neglect to prevent conduct in violation hereto, provided that the parent or guardian must have actual constructive knowledge of the offending conduct. The parent or guardian must actually know that the minor in his or her custody is violating this Ordinance or the circumstances must be such that a reasonably prudent parent or guardian should have known that the conduct of the minor was in violation of this section.
“CITY.” The City of Augusta, Kentucky, with administrative offices at 219 Main Street, Augusta, Kentucky, 41002.
“EMERGENCY.” An unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to a man-made or natural disaster, automobile accident, or any situation requiring immediate action to prevent bodily injury or loss of life.
“ESTABLISHMENT.” Any privately owned place of business operated for profit to which the public is invited, including but not limited to any place of amusement or entertainment.
“MINOR.” Any unemancipated person under 18 years of age.
“OPERATOR.” Any individual, firm, association, partnership, corporation, limited liability company, or other entity operating, managing, or conducting any establishment. The term includes but is not limited to the members or partners of an association, partnership or other entity and the officers of a corporation.
“PARENT.” Any person having legal custody of a minor;
(1) As a natural or adoptive parent;
(2) As a legal guardian;
(3) As a person who stands “in loco parentis”;
(4) As a person to whom legal custody has been given or directed by order of the Court;
(5) As a person having physical possession and claims a right of custody.
“PUBLIC PLACE.” A place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, streets, alleyways, transportation facilities, schools, places of amusement, parks, places of business, playgrounds and hallways, lobbies and other common areas of apartment houses, hotels, hospitals, office buildings, shops, stores, restaurants, ad other similar commercial establishments.
“REMAIN.” To stay behind, to tarry, or linger upon or in any public place.
“TIME OF NIGHT.” The prevailing standard of time, specifically, Eastern Daylight Time, generally observed at that hour by the public in the city; prima facie the time then observed in the city administrative offices and police station.
“YEARS OF AGE.” From one birthday, such as the fifteenth to (but not including) the day of the next, such as the sixteenth birthday, making it clear that fifteen or less years of age is herein treated as equivalent to the phrase “under sixteen years of age,” the latter phrase in practice, unfortunately, having confused a number of persons into the mistaken thought that sixteen years might be involved. Similarly, for example, 11 or less years of age means “under 12 years of age.”
(B) Curfew for minors established. It shall be unlawful for any person under the age of eighteen to be or remain in or upon any public place within the City during the hours between 10:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday, and 6:00 a.m. on the following day; and during the hours between 12:00 midnight on Fridays and Saturdays and 6:00 a.m. the following day. It shall be unlawful for any parent or guardian having legal custody of a minor to allow such minor to be in or remain in or upon a public place in the City under circumstances not constituting an exception as enumerated below during the time period during the hours between 10:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday, and 6:00 a.m. on the following day; and during the hours between 12:00 midnight on Fridays and Saturdays and 6:00 a.m. the following day.
(C) Exceptions. In the following exceptional cases, a minor, may be in, or upon a public place in the city during the hours between 10:00 p.m. on any Sunday, Monday, Tuesday, Wednesday, or Thursday, and 6:00 a.m. on the following day; and during the hours between 12:00 midnight on Fridays and Saturdays and 6:00 a.m. the following day.
(1) When the minor is accompanied by a parent or guardian;
(2) When the minor is accompanied by an adult authorized by a parent or guardian;
(3) 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, provided that written notice signed by the minor and countersigned by the minor’s parent is in the possession of such minor specifying when, where, and in what manner said minor will be exercising such First Amendment rights;
(4) In the case of reasonable necessity demonstrated by the minor’s parent or guardian such as necessity caused by illness in the family or unavailability of an adult to make a trip to obtain needed items for the family;
(5) When the minor is on the sidewalk of the place where such minor resides, or on the sidewalk of either next door neighbor who has not communicated an objection to a police officer or police department;
(6) When attending or returning home, by direct route from, and within one hour of the termination of, a school activity, or any activity of a religious or other voluntary association, provided that justification indicating the place and time of termination of said event can be given to any investigating officer of the police department.
(7) When engaged in any lawful employment activity, or going to or returning home from any lawful employment activity;
(8) When the minor, who is a duly authorized and licensed driver, is operating a motor vehicle for the purpose of passing through, by direct route, from one location to another, including all minors that may also be within the vehicle.
(9) When involved in an emergency.
(D) Parental responsibility. It shall be unlawful for a parent to knowingly permit or by inefficient control to allow the juvenile to remain in any city public place under the circumstances not constituting an exception to, or otherwise beyond the scope of, the section. The term “knowingly” includes knowledge that a parent should reasonably be expected to have concerning the whereabouts of a juvenile in that parent’s legal custody. This requirement is intended to hold a neglectful or careless parent up to a reasonable community standard of parental responsibility through an objective test. It shall, therefore, be no defense that a parent was completely indifferent to the activities or conduct or whereabouts of such juvenile.
(E) Operator responsibility. It shall be unlawful for any operator of an establishment to knowingly permit a juvenile to remain at the establishment under circumstances not constituting an exception to, or otherwise beyond the scope of, the section. The term “knowingly” includes knowledge that an operator should reasonably be expected to have concerning the patrons of the establishment. The standard for “knowingly” shall be applied through an objective test: whether a reasonable person in the operator’s position should have known that the patron was a juvenile in violation of the section.
(F) Enforcement of curfew.
(1) A police officer, upon finding or being notified of any minor in a public place whose parent is believed to be in violation of this Ordinance, may stop and question such minor and request such information as his or her name and age and the name, address and number of his or her parent, guardian, or person having legal custody.
(2) If the police officer determines or has reasonable cause to believe that a curfew violation has occurred, the police officer may obtain from the minor the information necessary to issue a citation to the minor’s parent, guardian, or person having legal custody, and then take the minor to his or her home, or direct the minor to proceed immediately to his or her home, or take the minor to the Augusta Police Department until released to the parent, guardian, person having legal custody. If the parent, guardian, or person having legal custody does not appear within two hours from the time the minor is taken into custody, the police shall follow the requirements set forth in KRS Chapter 610 and other applicable provisions of the Kentucky Unified Juvenile code.
(G) Construction and severability.
(1) Severability is intended throughout and within the provisions of this chapter. If any provision, including any exception, part, phrase, or term, or the application thereof to any person or circumstances is held invalid, the application to other persons or circumstances shall not be affected thereby and the validity of the chapter in any and all other respects shall not be affected thereby.
(2) Advisory opinions.
(a) The Mayor, after consultation with the City Attorney, is hereby authorized to give advisory opinions in writing, which shall be binding and shall be adhered to by the police, until the section 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 the Mayor or to a member of City Council, questioning the Curfew Ordinance as:
1. Ambiguous;
2. Having a potentially chilling effect on constitutional rights specifically invoked; or
3. Otherwise invalid, in all three categories with respect to proposed conduct definitely described.
(b) This administrative remedy must be exhausted prior to presenting to any court a question in any of the three categories. The City Council does not intend a result through the enforcement of the section that is absurd, impossible of execution or unreasonable. Council intends that the section be held inapplicable in cases, if any, where its application would be unconstitutional under the Constitution of the Commonwealth of Kentucky or Constitution of the United States of America.
(H) Continuing evaluation. The City Council shall continue its evaluation and updating of the section through methods including but not limited to:
(1) Within six months after the implementation of this section, the Chief of Police shall provide the City Council with a report concerning the effect of this section on crimes committed by and against minors, and of the number of warnings issued and arrests of minors, parents, and operators hereunder, and such other information as Council may request.
(2) On a regular basis, the City Council shall receive informal reports of all exceptional cases hereunder of reasonable necessity, the notices of school and other activities, the special permits and the regulations authorized above, and the advisory opinions for consideration by the Council in further updating and continuing evaluation of the section.
(Ord. 99-6, passed 11-17-99; Am. Ord. 2002-4, passed 8-21-02; Am. Ord. 2005-03, passed 5-18-05; Am. Ord. 2019-14, passed 9-18-19) Penalty, see § 136.99