Kenai OKs repeal of loitering laws, curfew for minors

It’s illegal in Kenai for someone under the age of 16 to be in a city street after 10 p.m. on a school night when not accompanied by an adult. It’s also illegal for people to beg in public spaces, and to wander aimlessly around or sleep in the city’s public places between midnight and sunrise.

The Kenai City Council on Wednesday changed that.

An ordinance approved by council members, which takes effect on June 14, deletes from city code those sections addressing public begging, loitering and sleeping on city streets and schools and a citywide curfew for residents under the age of 16. The policies, first enacted in 1978, are difficult to enforce and potentially violate citizens’ rights, according to the Kenai Police Department.

Kenai Police Chief David Ross said during Wednesday’s city council meeting that the policies also address behavior that largely doesn’t occur in Kenai.

“Some of these could be rewritten, but as they are, they just don’t meet a good legal standard,” he said. “So, for us to enforce them as they are, could be problematic for our enforcement officers and problematic for the city.”

The ordinance addresses public begging, loitering and sleeping in public places and a citywide curfew for residents under 16 years of age.

Regarding public begging, also called panhandling, Ross said courts have clearly established that cities cannot outright ban public begging.

“We can’t outlaw people asking for money,” Ross said.

The Washington Supreme Court in 2016 ruled that a policy enacted by the City of Lakewood prohibiting begging violated the First Amendment to the U.S. Constitution, which prohibits content-based restrictions on free speech in a traditional public forum. Kenai City Attorney Scott Bloom said begging generally cannot be regulated, but some conduct associated with begging, such as conduct that interferes with motorists or infringes on the rights of others, can be.

The same section of code prohibiting public begging once prohibited fortune-telling, mind reading and “window peeping.”

The city’s current rules against public loitering and sleeping in public places, he said, are difficult to enforce and can also confuse residents who may not be aware they’re violating a city law. Kenai’s current municipal code, for examples, includes “aimless wandering” as a behavior not allowed in public places between midnight and sunrise.

“Wandering aimlessly among the city streets — we can’t just outlaw that,” Ross said. “Probably half the citizens that go for a walk are wandering aimlessly.”

Whether or not cities can prohibit people from sleeping in streets or other public spaces — as done by Kenai’s loitering policy — is actively being considered by the U.S. Supreme Court. Bloom said during Wednesday’s meeting that he and Ross considered the pending ruling when reviewing the sections of Kenai code.

“We’d like to see how that ruling comes out before we make our change because that would certainly apply to us,” Bloom said.

The last issue addressed by the ordinance passed Wednesday is the city’s curfew for residents under 16 years of age. That curfew prohibits Kenai young residents from being out without an adult after 10 p.m. when school is in term and after 11 p.m. when school is out of session. If a resident 16 years old or younger is found to be violating that section of code, their parent or guardian is also in violation of city policy.

Ross said Wednesday that Kenai is the only city on the Kenai Peninsula that still has a curfew. If council members decide a curfew is something they want to keep, Ross said the city would need to be rewritten in a way that could withstand legal challenges.

In Anchorage, for example, exceptions are made for things like emergencies and religious practices, and the city had to establish a statistical foundation for why the curfew was necessary. Ross doesn’t think Kenai has that foundation.

“I’m not sure … if we have that — some statistical basis in Kenai to suggest that there’s this high level of crime by juveniles during those hours of the night,” he said.

City Council member Alex Douthit says he favors a city curfew for young people.

“I would like to see some kind of a curfew,” he said. “I think it’s a good thing to have on there. If anything, it’s just a good thing to be able to warn your children that, no, you can’t stay out this late because it’s not only my rules, but it’s also the actual rules of the law.”

Kenai Vice Mayor Henry Knackstedt disagreed, calling the existing curfew “very archaic.”

“What I’ve gathered from our police department and our attorney is that there’s nothing that really needs that attention right now,” Knackstedt said. “Maybe a council member might have have something they want to do. The curfew thing — I thought that was the most archaic.”

Both Douthit and Mayor Brian Gabriel expressed concerns about the council repealing sections of code and not replacing them with revised policies.

“Although I’m OK with repealing this … think about unintended consequences that future administrations (and) police chiefs might have to deal with, and maybe get something on the books that offer them some level of confidence that they can enforce the law,” he said.

Ross and Bloom said they favor a repeal first, enact later approach to the issues addressed by the ordinance passed Wednesday.

“With begging, I just don’t think that we have a problem,” Bloom said. “If we have a problem that comes up, let’s address it and then I think we can be more specific in how we define the actions that we’re trying to prohibit in the city.”

Ross agreed.

“We thought it would probably be better to — instead of speculating what we might need to change them to someday — that we just remove them from code at this point,” Ross said. “Then, if we found a reason for them in the future, we could come up with an appropriate ordinance at that time.”

Wednesday’s city council meeting will be available to stream on the City of Kenai’s YouTube channel.

Reach reporter Ashlyn O’Hara at ashlyn.ohara@peninsulaclarion.com.