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HomeMy WebLinkAboutCOW 2007-01-22 Item 4C - Ordinance - Curfew for Minors COUNCIL AGENDA SYNOPSIS J,f.Wt� ;Jyq•• O jaw sy' Initials ITEM NO. I 1, t 1 Meeting Date Prepared by J Mayor's review j Council review -of IV/ 01/22/07 1 PO 1 .t� 1 ;Pad r -ITEM INFORMATION I CAS NUMBER: 07-011 I ORIGINAL AGENDA DATE: 1/22/07 AGENDA ITEM TITLE An Ordinance repealing the Curfew for Minors CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mtg Date 1/22/07 Mtg Date Mtg Date Mtg Date 2/5/07 Mtg Date Mtg Date Mtg Date SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal P&R Police PI/ SPONSOR'S There has been discussion regarding the repeal of the Curfew for Minors Ordinance. A SUASIARY juvenile curfew ordinance similar to the City's ordinance has been ruled by the WA State Supreme Court as unconstitutional. Based on the City's inability to enforce its curfew ordinance, it is recommended that the ordinance be repealed. REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DA B: 1/16/07 RECOMMENDATIONS: SPONSOR /ADMIN. Repeal TMC 8.75 C0M Mr1"IEE Unanimous approval to move forward to repeal the Curfew for Minors COST IMPACT TFUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED -0- -0- -0- Fund Source: N/A Comments: MTG� DATE RECORD OF_COUNCIL ACTION 1/22/07 MTG DATE ATTACHMENTS 1/22/07 1 Memo from Peter Beckwith dated 12/22/06 to the F S Cmte Draft of Ordinance Excerpts from TMC Title 8 1 1 Finance Safety Committee Minutes dated 1/16/07 KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM MICHAEL R. KENYON 11 FRONT STREET SOUTH LACEY L. MADCHE BRUCE L. DISEND ISSAQUAH, WASHINGTON 98027 -3820 PETER B. BECKWITH SANDRA S. MEADOWCROFT www.KENYONDISEND.COM THOMAS J. GUILFOIL (425) 392 -7090 (206) 628 -9059 RENEE G. WALLS SHEI.I.FY M. KERSLAKE FAx (425) 392 -7071 JOSEPH B. LEVAN CHRIS D. BACHA KAKI L. SAND HEIDI L. BROSIUS MONICA A. BUCK KERRI A. JORGENSEN KATHRYN J. HARDY INFORMATION MEMO To: Finance and Safety Committee From: Peter Beckwith, Assistant City Attorney Date: December 22, 2006 Re: Ordinance Repealing TMC 8.75 Curfew for Minors ISSUE Whether the City should repeal TMC 8.75 regarding curfews for minors. BACKGROUND In the Washington State Supreme Court case, City of Sumner v. Walsh, 148 Wn.2d 460 (2003), the Court held unconstitutional a juvenile curfew ordinance. The Sumner ordinance made it unlawful for juveniles to remain in a public place after curfew hours but provided a list of exemptions. The Court found the ordinance to be vague and that the exemptions could not be applied in a non arbitrary manner. Id. at 502. DISCUSSION TMC 8.75, Curfew for Minors, is very similar to the Sumner ordinance. The Court's analysis and holding would apply to the City's curfew language. Even if the City were to revise its curfew language, it may still be challenged as a violation of a juvenile's right to move freely in public places. This issue was raised by the Court in a footnote and addressed more thoroughly in Justice Chambers's concurring opinion. Id. (FN 8). As the City's current curfew is unconstitutional it should be repealed. RECOMMENDATION Repeal TMC 8.75 Attachments: Proposed ordinance. TMC 8.75 G: \City Attorney \PETER\Police\MEMO Juvenile rfew Repealej. 'o.doc/P /12/28/06 SERVING WASHINGTON CITIES SINCE 1993 DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NO. 1973, AS CODIFIED AT TUKWILA MUNICIPAL CODE CHAPTER 8.75, REGARDING CURFEW FOR MINORS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the Washington State Supreme Court has ruled that juvenile curfews, similar to that set forth in Tukwila's Ordinance No. 1973, are unconstitutional; and WHEREAS, the Tukwila City Council desires to repeal Ordinance No. 1973 to bring the City's code into compliance; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Repealer. Ordinance No. 1973, as codified at Tukwila Municipal Code Chapter 8.75, entitled. "Curfew for Minors" is hereby repealed in its entirety. Section 2. Severability. Should any section, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this Ordinance be pre empted by state or federal law or regulation, such decision or pre- emption shall not affect the validity of the remaining portions of this Ordinance or its application to other persons or circumstances. Section 3. Effective Date. This Ordinance shall be published in the official newspaper of the City, and shall take effect and be in full force five days after the date of publication. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2007. ATTEST AUTHENTICATED: Steven M. Mullet, Mayor Jane E. Cantu, CMC, City Clerk Filed with the City Clerk: APPROVED AS TO FORM BY: Passed by the City Council Published: Effective Date Office of the City Attorney Ordinance Number: C:\Do:.uments and Settings\AII Users\Desktop1Ke11y\MSDATA \Ordinances \Curfew for Minors.doc SK:ksn 1/19/2007 Page 1 of 1 TUKWILA MUNICIPAL CODE person before the court at the time of issuance of the Chapter 8.75 order. CURFEW FOR MINORS C. The written SOAR order shall contain the court's directives and shall bear the statement: "Violation of this order is a criminal offense under TMC Sections: 8.72.060 and will subject the violator to arrest." 8.75.010 Definitions (v.. Lvit 8.75.020 Curfew Established d Uzi:_ 2 iO 8.72.060 Violation of SOAR Orders 8.75.030 Exemptions 8.75.040 Enforcement A. In the event a police officer has probable cause 8.75.050 Violations /Penalties to believe that a person has been issued a SOAR order as a condition of pre -trial release or a sentence imposed by the court and, in the officer's presence, the person is 8.75.010 Definitions seen violating or failing to comply with any require- A. `Aid" means all assistance whether given by ment or restriction imposed upon that person by the words, acts, encouragement, support, presence or court as a condition of his or her pre -trial release or neglect of parental or custodial responsibilities for a condition of sentence, the officer may arrest the viola- minor required by any existing or hereafter enacted tor without warrant for violation of the SOAR order statute of this state. and shall bring that person before the court that issued B. `Aid and abet" means that a person with the order. knowledge that it will promote or facilitate the com- B. When a SOAR order is issued pursuant to this mission of a curfew violation, either: chapter and the person so named in the order has 1. solicits, commands, encourages, or requests notice of the order, a violation of any of the provisions a minor to commit the violation; or of the SOAR order is a gross misdemeanor and shall be 2. aids or agrees to aid a minor or another punishable by a fine not to exceed $5,000 or impris- person in planning or committing the violation. onment not to exceed more than one year, or both. C. "Custodian" means any person at least 18 'Ord- 2017 `pat;, 203 years of age and authorized by a parent or guardian to have the care and custody of a juvenile. D. "Curfew hours "means: 1. 11:00PM on Sunday, Monday, Tuesday, Wednesday, or Thursday until 5:OOAM the following day, and 2. 11:59PM until 5:OOArvM any Friday or Satur- day. E. "Emergency" means an unforeseen combina- tion of circumstances or the resulting state that calls for immediate action. The term includes, but is not lim- ited to, a fire, a natural disaster, an automobile accident, or any situation requiring immediate action to prevent serious bodily injury or loss of property. F. "Establishment" means any privately -owned place of business operated for a profit, to which the public is invited, including, but not limited to, any place of amusement or entertainment. G. "Extended family member" means grand- parent, brother, sister, stepbrother, stepsister, uncle, aunt, or first cousin who is not a minor and with whom the minor child has a relationship and is comfortable with and who is willing and available to care for the child. H. "Guardian" means an individual, other than a parent, who legally has the responsibility for the care and management of a child during its minority. I. `Minor" means any person under 18 years of age. Page 8 Printed July 2006 TITLE 8 PUBLIC PEACE, MORALS AND SAFETY J. "Parent" means a person who is a natural 6. In a motor vehicle involved in interstate parent, adoptive parent, foster parent, or step parent of travel with the consent of a parent guardian, or other a minor. adult having custody or control of such minor. K. "Public place" means any place to which the =v :d. 1 c( 201/ public or a substantial group of the public has visual or physical access to and includes, but is not limited to, 8.75.040 Enforcement streets, highways, parks, and the common areas of A. Unless flight by the person or other circum- schools, hospitals, apartment houses, commercial stances make it impractical, a police officer shall, prior buildings, parking lots, automobiles, transportation to taking a minor into custody for a curfew violation, facilities, and shops, businesses and buildings open to approach, detain and allow the minor an opportunity to the general public, including those which serve food or dispel the belief a police officer may have that a curfew drink or provide entertainment, and their doorways, violation is being committed by requesting the minor to entrances and grounds. provide identification, age, parent's name and address, L. "Remain" means to linger or stay; or to fail to and to explain their presence and conduct. A police leave the premises or area when requested to do so by officer shall not issue a citation or take further action a police officer or the property owner, operator or other unless the officer reasonably believes an offense has person responsible for the place. occurred, and that, based on any response provided by Ord. 1c:73 2001, the minor and other circumstances, none of the exemptions under Section 8.75.030 are present. 8.75.020 Curfew Established B. An officer who reasonably believes that a minor A. A minor commits the offense of "curfew viola- is committing a curfew violation shall have the tion" if he or she remains in any public place or estab- authority to take the minor into custody. lishment within the City of Tukwila during curfew C. The officer shall inform the minor of the reason hours, except as permitted under the provisions of this for such custody and shall, after attempting to call a chapter. parent or guardian by phone, either: B. Any person, including the minor's parent, 1. Transport the child to his or her home or to custodian, or legal guardian, commits the offense of a parent at his or her place of employment, if no parent "curfew violation" if he or she knowingly aids or abets is at home. The parent may request that the officer the minor to commit a "curfew violation take the child to the home of an adult extended family urn. 1;73 §2, 2001 member, responsible adult, crisis residential center, the 8.75.030 Exemptions Department of Social and Health Services, or a licensed youth shelter. In responding to the request of the It shall not be deemed an offense under this parent, the officer should take the child to a requested chapter if any of the following conditions are found to place, which, in the officer's belief, is within a reason apply. The minor was: able distance of the parent's home. The officer releas- 1. Accompanied by a parent, guardian, ex- ing a child into the custody of a parent, an adult tended family member or custodian, provided that extended family member, responsible adult, or a person is over 18 years of age. licensed youth shelter shall inform the person receiving 2. On an errand at the direction of the minor's the child of the reason for taking the child into custody parent or guardian, without any unnecessary detour or and inform all parties of the nature and location of stop. appropriate services available in the community; or 3. Attending, going to, or returning home 2. Take the child to a designated crisis from directly and without any detour, any social, residential center's secure facility or a center's semi school, political, religious, or recreational activity or secure facility if a secure facility is full, not available, or gathering, including but not limited to dances, school, not located within a reasonable distance, if: club or social gatherings, political rallies, vigils, or a. a child expresses fear or distress at the protests, religious gatherings, study groups, theater prospect of being returned to his or her home which presentations, concerts, sporting events, or the like, leads the officer to believe there is a possibility that the whether it is an officially organized activity or gathering child is experiencing some type of child abuse or by an overseeing body, such as a school, or not. neglect, as defined in RCW 26.44.020; or 4. Involved in an emergency. b. it is not practical to transport the child 5. Engaged in lawful employment or traveling to his or her home or place of the parent's employment; to or from an employment activity, without a detour or or stop. c. there is no parent available to accept custody of the child. Printed July 2006 Page 8 TUKWILA MUNICIPAL CODE 3. After attempting to notify the parent, if a crisis Chapter 8.80 residential center is full, not available, or not located fICELL,IEGtS CRIMES within a reasonable distance, the officer may request the Department of Social and Health Services to accept custody of the child. If the Department determines Sections: that an appropriate placement is currently available, the 8.80.010 Conduct Prohibited Department shall accept custody and place the child in 8.80.020 Littering, Pollution And Smoking an out -of -home placement. If the Department declines 8.80.030 United States and State Flags Related to accept custody of the child, the officer may release Crimes the child after attempting to take the child to the following, in the order listed: the home of an adult extended family member, a responsible adult, a 8.80.010 Conduct Prohibited licensed youth shelter; and shall immediately notify the The following statutes of the State of Washington Department if no placement option is available and the are adopted by reference: child is released. RCW 9.91.010 Denial of civil rights Terms defined. D. An officer's responsibilities under this section, RCW 9.91.020 Operating railroad, steamboat, after taking a minor into custody for a curfew violation, vehicle, etc., while intoxicated. shall be changed, expanded or limited without further RCW 9.91.025 Unlawful bus conduct. amendment to be consistent with the provisions of RCW 9.91.110 Meal buyers Records of purchases RCW 13.32A.050 and .060 as now or hereafter Penalty. amended. (Ord, 1389 1986; d. '363 19, .i Ji /Ord. 173 4, 20011 8.80.020 Littering, Pollution and Smoking 8.75.050 Violations/Penalties The following statutes of the State of Washington A. A curfew violation is designated as a civil are adopted by reference, as presently constituted or infraction. The Tukwila Municipal Court shall have hereinafter amended: jurisdiction over all civil infractions issued under this RCW 70.93.060 Littering prohibited Penalties. chapter. Civil infractions shall be issued and processed RCW 70.54.010 Polluting water supply Penalty. in accordance with RCW 7.80, which is incorporated RCW 70.155.080 Purchasing, possessing, or obtaining herein by reference. tobacco by persons under the age of B. A person found to have committed an eighteen Civil infraction Courts of infraction shall be assessed a monetary penalty jurisdiction. according to the following scale: RCW 70.160.020 Definitions. 1. First offense not to exceed $50.00. RCW 70.160.030 Smoking in public places except 2. Second offense not to exceed $100.00. designated smoking areas prohibited. 3. Third offense not to exceed $250.00. RCW 70.160.040 Designation of smoking areas in C. A minor's parent, custodian, or legal guardian is public places Exceptions Restau- responsible for payment of any monetary penalty rant smoking areas Entire facility or imposed upon a minor under this chapter. area may be designated as Ord 7 02 5 2 C01 nonsmoking. RCW 70.160.050 Owners, lessees to post signs prohibiting or permitting smoking Boundaries to be clearly designated. RCW 70.160.060 Intent of chapter as applied to certain private workplaces. RCW 70.160.070 Intentional violation of chapter Removing, defacing, or destroying required sign Fine Notice of infraction Exceptions Violations of RCW 70.160.040 or 70.160.050 Subsequent violations Fine Enforcement by fire officials. ford. 1973 31, 2000; Ord. 1363 t_, a i 975; Page 8 Printed July 2006 Finance Safety Committee January 16, 2007 5:00 p.m. Present: Jim Haggerton, Chair; Joan Hernandez and Dennis Robertson, Council members. Steve Mullet, Mayor; Rhonda Berry, City Administrator; Kevin Fuhrer Director of Finance; Peter Beckwith, Assistant City Attorney; Diane Jenkins, Administrative Assistant to the City Council; Mary Fertakis and Mark Wahlstrom, Tukwila School Board; and Jan Lande, Executive Assistant/Public Infomiation Officer, Tukwila School District. Business Agenda A. Alcoholic Beverage Control/Enforcement Mr. Beckwith indicated that TMC 8.30.010 and .030, relating to Alcoholic Beverage Control and Enforcement, are not in compliance with state law. TMC 8.30.010 will be amended and .030 repealed. Currently Tukwila's code stated that a violation of the "open container" is a misdemeanor punishable by jail and fines; state law indicates that it is a civil infraction. Revisions will be made to mirror the state Language. Unanimous approval to forward to January 22 Committee of the Whole meeting. B. Ordinance repealing TMC8.75 Curfew for Minors Mr. Beckwith referred to TMC 8.75, Curfew for Minors. He related that the Washington State Supreme Court has ruled unconstitutional a juvenile curfew ordinance (very similar to the city's ordinance). Even if the city were to revise its curfew language, it could still be challenged as a violation of a juvenile's right to move freely in public places. It was recommended that TMC 8.75 be repealed. Mr. Haggerton noted that this was a tool used by police and, what, if other tools could be given to the police. Ms. Berry suggested that the Police and Parks departments could provide a joint report on this issue. Ms. Hernandez pointed out that by repealing this code, it also repeals parent's responsibility. Ms. Lande conveyed that high school students need structure and parents need to be accountable for their children. She highlighted some of the problems experienced by the school district. Ms. Fertakis noted that there are driving restrictions imposed on drivers' licenses for students and wondered if this too would be deemed unconstitutional. Unanimous approval to forward to January 22 Committee of the Whole meeting. C. Amendment to the gambling tax ordinance Mr. Fuhrer recalled that the Seattle Jaycees operates a Bingo and pull tab operations at the Police Athletic Association. They recently petitioned the council for assistance. Because of the state smoking ban, they faced drastic reduction in revenues and asked the city to waive a portion of their gambling tax. Time was spent looking at their fmancial operations and talking with the Gambling Commission to get better understanding of how they operate and to try to develop a solution. An amendment is being proposed to the ordinance which would provide an exemption to charitable non profit organizations conducting gambling operations to contribute 70% of the gambling tax to a charitable non profit organization located within the City whose purpose is to provide health, education, welfare, or other needs. The City cannot specify the organization or dollar amount. He reviewed the administrative process which would be followed to ensure compliance. The amendment would apply to the 4 quarter, the period ending December 31; this will be monitored quarterly. Currently, Seattle Jaycees is the sole organization located within Tukwila to which this would apply. Ms. Hernandez asked what would be the financial impact to the City. Mr. Fuhrer responded $70,000 $75,000. Mr. Robertson noted that if this is not implemented, this organization would be out of business since they are not able to comply with the current state rules and regulations. He believed that this was a "win/win" situation for everyone. Ms. Berry commented that many of the eligible non profit organizations seek funding through Tukwila's human services for financial assistance. It is possible that this will also help by providing additional resources to these organizations. Unanimous approval to forward to January 16 regular council meeting.