Key West’s New Year’s curfew stands; federal judge has denied legal challenge
With the clock ticking down to the end of 2020, a Miami federal judge Tuesday decided the city of Key West’s three-night curfew set to start New Year’s Eve holds up under the Constitution.
U.S. District Judge James Lawrence King Tuesday evening denied an application for a temporary restraining order to stop the curfew filed by Andrew Day, of Key West.
“The city of Key West has a substantial government interest in preserving and protecting the public health of its citizens,” King wrote in his decision. “The city has not prohibited public gatherings indefinitely. Instead, it has prohibited public gatherings during the brief time frame within which tourists and partygoers typically gather in the street to celebrate the New Year.”
The decision came hours after a two-hour hearing held Tuesday morning on Zoom.
After the ruling came out Tuesday evening, Day’s attorney William Athas said he won’t appeal the ruling, citing time constraints.
“There’s just not enough time to appeal it,” said Athas.
Mayor Teri Johnston on Dec. 4 issued the emergency order requiring all nonessential businesses to close from 10 p.m. to 6 a.m., starting New Year’s Eve, and for people to be home by 10:30 p.m., with some exceptions.
People may travel to and from religious services and use essential businesses, which include airlines, gas stations and grocery stores.
The curfew continues for two more nights and ends at 6 a.m. Jan. 3.
“It restricts public speech and assembly for a total of twenty-four hours (comprised of three eight-hour periods) during one of the busiest annual events that the city experiences,” King wrote.
Day, who lives in Key West with his wife and two children, sued the city Dec. 21, saying the restrictions violate his constitutional rights to free speech, travel and peaceful assembly.
As for free speech, King said Day “may still voice his displeasure on any social media platform and reach what is potentially a larger audience for his desired speech” and can use technology to virtually assemble “during this very brief period of time.”
“The virus doesn’t look at a clock,” said Athas. “I believe people can act responsibly and I don’t think the government should come in and make a decision for every move and action we take.”
Monroe County hasn’t issued a curfew, Athas pointed out.
Day lost his job in the bar business due to the novel coronavirus pandemic, Athas said.
But Day has a chance to work as a bartender this weekend, Athas said, and Day’s wife works in the same industry.
“He wants to welcome in 2021 with the hope it will be a better year,” Athas said. “He doesn’t want to do it locked inside his home like a prisoner.”
The mayor’s temporary emergency order is aimed at reducing the spread of COVID-19 by limiting some public gatherings, said attorney Michael Burke, who is representing Key West in this case.
“It is a very reasonable response to a public health emergency,” Burke said.
Late Monday, the city amended the mayor’s emergency order, adding that people during the curfew hours could use essential businesses.
That was meant to clarify the original order, Burke said, which was never meant to prevent people from using essential business services.
On the same day that Day sued Key West over its curfew, a federal judge stopped a Broward County order that banned food and alcohol sales between midnight and 5 a.m., saying it violated the Sept. 25 order by Gov. Ron DeSantis that removed COVID-19 restrictions on businesses.
But Burke pointed out that in Day’s case, there was no claim against the city with respect to the governor’s order, and that in Broward, the federal case was brought by business owners, not an individual.
Miami-Dade County’s curfew survived a legal challenge in state court. The 3rd District Court of Appeal ruled against the strip club Tootsies, which sued in October and had at first won in the circuit court.
But the appeals court said the curfew did not violate the governor’s order.
This story was originally published December 29, 2020 at 12:54 PM.
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