Can a New year’s curfew in Key West hold up in federal court? A local has sued the city

A Key West man has sued the city over the mayor’s emergency order that puts a 10 p.m. curfew on the New Year’s holiday weekend.

Andrew T. Day says the order violates his constitutional rights to free speech and to peacefully assemble.

Day sued the city, Mayor Teri Johnston and City Manager Greg Veliz on Monday in U.S. District Court in Key West, asking the court to stop the curfew by issuing a temporary restraining order.

The emergency order, issued Dec. 4 by Johnston, sets a 10 p.m. to 6 a.m curfew for three nights, starting Dec. 31, “to safeguard life and health.” It ends at 6 a.m. Jan. 3.

“With the stroke of a pen she shut down Key West for three days,” said attorney William Athas, of Miami, who is representing Day. “It wasn’t an ordinance. It was an executive order.”

Only essential businesses can stay open past 10 p.m. on these nights. People must be at their homes or rentals by 10:30 p.m. each night, the order states.

The curfew order falls under the state’s emergency management law and is punishable as a second-degree misdemeanor, which carries up to 60 days in jail or a fine of up to $500. But Johnston and Veliz have said they don’t want to see arrests and are asking people to comply.

“These restrictions will extinguish the constitutionally guaranteed First Amendment rights of freedom of speech and peaceful assembly,” the lawsuit states. “These rights are being taken away from the plaintiff for eight hours per day for three consecutive nights.”

The city on Tuesday had no comment on the lawsuit, said Key West spokeswoman Alyson Crean.

“We cannot comment on open litigation,” Crean said.

Athas said he believes the mayor’s intentions are honorable but the order isn’t appropriate under the Constitution.

“The mayor is not a medical doctor,” Athas said. “The virus doesn’t look at a clock. It’s going to spread no matter what. You have to use personal responsibility.”

The case was assigned to U.S. District Court Senior Judge James Lawrence King.

Miami-Dade County’s curfew has survived a legal challenge in state court. The Third District Court of Appeal ruled against the strip club Tootsies, which sued in October.

Miami-Dade’s midnight curfew will be relaxed on Christmas Eve and New Year’s Eve, allowing residents to stay out until 1 a.m. for the holidays.

This story was originally published December 22, 2020 at 4:52 PM.

Gwen Filosa

Miami Herald

Gwen Filosa covers Key West and the Lower Florida Keys for FLKeysNews.com and the Miami Herald and lives in Key West. She was part of the staff at the New Orleans Times-Picayune that in 2005 won two Pulitzer Prizes for coverage of Hurricane Katrina. She graduated from Indiana University.