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Youth Protection


Youth Protection Ordinance

(a) Purpose:

The purpose of this ordinance is to protect juveniles from victimization and exposure to criminal activity by establishing a curfew for juveniles under the age of eighteen years in the City of Charleston. The Youth Protection Ordinance is intended to reinforce and promote the role of the parent in raising and guiding children, and promote the health, safety, and welfare of both juveniles and adults by creating an environment offering better protection and security for all concerned.

(b) Definitions:

For the purposes of this ordinance, the following words and phrases shall have the following meanings:

(1) Direct Route: The shortest reasonable path of travel or a commonly used route to reach a final destination without any detour or stop along the way.

(2) Emergency: An unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to, a fire, a natural disaster, an automobile accident, or any situation requiring immediate action to prevent serious bodily injury or death. This term also shall include any action that is reasonably necessary in order to respond to the medical needs of a family member of the juvenile regardless of whether the juvenile's action is taken in order to prevent death or serious bodily injury.

(3) Establishment: Any privately owned place of business operated for profit to which the public has access or is invited including but not limited to any place of amusement or entertainment.

(4) Guardian: A Person who is court-appointed to be the guardian of a juvenile.

(5) Juvenile: Any person under the age of eighteen years of age.

(6) Owner/Operator: Any individual, firm, association, partnership or corporation, operating, managing or conducting any establishment, including the employees, members or partners of an association or partnership and the officers of a corporation.

(7) Parent: A person who is a natural parent, adoptive parent, foster parent or step-parent of another person, or a person to whom legal custody has been given by court order.

(8) Public Place: Any place that is generally open to and used by the public or a substantial group of the public, whether it be publicly or privately owned, including but not limited to, streets, sidewalks, highways, alleys, rights of way, public vehicular areas and parking lots, transportation facilities, theaters, restaurants, shops, bowling, alleys, schools and school grounds, places of business and amusement, playgrounds, parks, similar areas that are open to or accessible to the public.

(9) Remain: To linger or stay in a public place, or to fail to leave the premises when requested to do so by a police officer, or to fail to leave the premises of an establishment when requested to do so by the owner/operator or employee of the premises.

(10) Restricted Hours: The time of night referred to herein is based upon the prevailing standard of time, whether Eastern Standard Time or Eastern Daylight Savings Time, generally observed by the public in the City of Charleston, West Virginia.

Restricted hours shall mean:
(A) 10:00 p.m. on any Sunday, Monday, Tuesday, Wednesday or Thursday until 6:00 am of the following day; and
(B) 12:01 a.m. until 6:00 a.m. on any Saturday or Sunday.

(c) Offenses:

Except as provided by subsection (d), the following offenses constitute a violation of this ordinance:

(1) A juvenile commits an offense by being present in or remaining in any public place or on the premises of any established within the city during the restricted hours.

(2) A parent or guardian of a juvenile commits an offense if they knowingly permit, or by insufficient control, allows the juvenile to remain in any public place or on the premises of any establishment within the city during the restricted hours. 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.

(3) The owner, operator, or an employee of an establishment commits an offense if he knowingly allows a juvenile to remain upon the premises of the establishment during the restricted hours. The term "knowingly" includes knowledge that an operator or employer should reasonably be expected to have concerning the patrons of an establishment. The standard for "knowingly" shall be applied through an objective test: whether a reasonable person in the operator's or employee's position should have known that the patron was a juvenile in violation of this Ordinance.

(4) It shall be a violation of this ordinance for any person 18 years or older to aid and abet a juvenile in the violation of subsection g (1).

(5) It shall be a violation of this ordinance for a parent or guardian to refuse to take custody during the restricted hours of a juvenile for whom the parent or guardian is responsible.

(d) Exceptions:

A juvenile who is in a public place or establishment during the restricted hours shall not be in violation of this ordinance if the juvenile is:

(1) Accompanied by his parent or guardian.

(2) Accompanied by an adult 18 years of age or older authorized by the parent or guardian of such juvenile to take the parent or guardian's place in accompanying the juvenile for a designated period of time and purpose within a specified area.

(3) On an errand, using a direct route, at the direction of the juvenile's parent or guardian until the hour of 12:30 am.

(4) In a motor vehicle with a parental consent engaged in interstate travel through the City or originating or terminating in the City.

(5) Traveling in a motor vehicle with a parent or guardian, or traveling in a motor vehicle with an adult 18 years of age or older authorized by the parent or guardian of such juvenile to take the parent or guardian's place in accompanying the juvenile for a designated period of time and purpose within a specified area.

(6) Engaged in a lawful employment activity, or using a direct route to or from a place of employment.

(7) Reacting or responding to an emergency.

(8) Attending or traveling to or from, by direct route, an official school, religious, or recreational activity that is supervised by adults and sponsored by a public or private school, the City of Charleston or other governmental entity, a civic organization, or another similar entity that accepts responsibility for the juvenile.

(9) 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.

(10) Married or emancipated.

(11) When authorized, by special permit from the Chief of Police or his designee carried on the person of the juvenile thus authorized, as follows. When necessary nighttime activities of a juvenile may be inadequately provided for by other provisions of this Ordinance, then recourse may be had to the Chief of Police, or his designee, either for a regulation as provided in subsection (d) (12) or for a special permit as the circumstances warrant. Upon the findings of reasonable necessity for the use of a public place to the extent warranted by a written application signed by a juvenile, and by a parent of the juvenile, if feasible, stating:
(1) the name, age, and address of the juvenile;
(2) the name, address, and telephone number of a parent thereof;
(3) the height, weight, sex, color of eyes and hair and other physical characteristics of the juvenile;
(4) the necessity that requires the juvenile to remain upon a public place during the restricted hours otherwise applicable;
(5) the public place; and involved by date and hour, the Chief of Police or his designee may grant a permit in writing for the juvenile's use of a public place at such hours as in the opinion of the Chief of Police may reasonably be necessary and consistent with the purposes of this ordinance.

Note: Circuit Judge Charles King declared paragraph 11 unconstitutional insofar as the Charleston City Council delegated to the police chief its legislative authority to create exceptions to prohibitions of the curfew ordinance, giving unbridled discretion to the police chief to issue permits without providing any meaningful standards by which the police chief may exercise his or her authority. That Charleston City Code 18-17(d)(11) must be interpreted so as to eliminate any discretion on the part of the chief of police, by requiring him or her to issue a permit when a parent or guardian makes a determination that there is a reasonable necessity for his or her child or ward to be in a public place during curfew hours.

(12) When authorized, by regulation issued by the Chief of Police or his designee in other similar cases of reasonable necessity, similarly handled as set forth in subsection (d) (11) but adapted to reasonably necessary nighttime activities of more juveniles than can readily be dealt with on an individual special permit basis. Normally such regulation by the Chief of Police or his designee permitting use of public places 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 public places permitted, the period of time involved not to extend more than one (1) hour beyond the time for termination of the activity, and the reason for finding that the regulation is reasonably necessary and is consistent with the purposes of this Ordinance.

(e) Defense:

It is a defense to prosecution under subsection (D (3) that the owner, operator, or employee of an establishment promptly notified the police department that a juvenile was present on the premises of the establishment during the restricted hours and refused to leave.

(f) Enforcement:

(1) Before taking any enforcement action under this ordinance, a police officer shall ask the apparent offender's age and reason for being in the public place or establishment during the restricted hours.

(2) The officer shall not prepare a juvenile arrest report, issue a citation, or make an arrest under this ordinance unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no exception or defense in subsection (d) or (e) is present.

(g) Penalties:

(1) A juvenile who violates any provision of this ordinance is subject to being adjudicated delinquent. The municipal court, may in its discretion, impose any dispositional alternative(s) that are provided by the West Virginia Code 49-5-2 (d).

(2) Any person other than a juvenile who is found guilty of violating any provision of this ordinance shall be guilty of a misdemeanor and shall be in the discretion of the court subject to a fine up to $500.00, and/or a jail sentence not to exceed thirty (30) days as set forth in 1-7 of this code.

(h) Severability:

If any portion of this ordinance, or its application to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not effect the remaining portions of this ordinance. City Council hereby declares that it would have enacted the remaining portions regardless of whether any part of this ordinance is declared unconstitutional or invalid.