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The Party's (Still) Off: Federal Judge Upholds New Year's Eve Curfew In Key West

Huge crowds usually gather in downtown Key West on New Year's Eve to see various "drops" like the conch shell at Sloppy Joe's.
Huge crowds usually gather in downtown Key West on New Year's Eve to see various "drops" like the conch shell at Sloppy Joe's.

Bars and alcohol sales in Key West will close at 10 p.m. on New Year's Eve and through the weekend. A federal judge Tuesday denied a challenge from a resident who said the curfew violated his Constitutional rights.

The city of Key West can keep a 10 p.m. curfew for New Year's Eve and through the weekend.

A federal judge ruled Tuesday in the city's favor, denying a bid to overturn the curfew.

Andrew Day sued the city in federal court after Mayor Teri Johnston ordered a 10 p.m. curfew on New Year's Eve and the following two nights.

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New Year's Eve usually draws big crowds to downtown Key West and city officials were concerned that would happen again, even though the symbolic midnight drops — like the conch shell at Sloppy Joe's and a drag queen in a ruby slipper at the 801 Bourbon bar — have been canceled.

Senior U.S. District Judge James Lawrence King wrote in his decision that the city had a right to protect public health with the "narrowly tailored" curfew.

"The City has not prohibited public gatherings indefinitely. Instead, it has prohibited public gatherings during the brief timeframe within which tourists and partygoers typically gather in the street to celebrate the New Year," King wrote in his ruling. "Clearly, the City’s interest in protecting public health would be achieved far less effectively if crowds of people were to gather in the street for the usual festivities."

William Athas, Day's attorney, said in a hearing Tuesday morning that the curfew would not have its intended effect.

"The virus doesn't look at a clock. The virus is going to strike at a 9 a.m. breakfast, a 12 noon lunch or a 5 p.m. cocktail hour," he said.

"The curfew does little to nothing to slow and halt the spread of this virus," he said. "And I would suggest to your Honor, the curfew does quite the opposite. It causes people to be inside, whether they wish to be or not, under threat of sanctions. And it causes them to be around one another, which I think it's clear — the more you're around people, the more you're going to have a chance of spreading especially among family and friends who aren't using the masking situation."

Athas said the curfew violated Day's First Amendment rights to freedom of speech and assembly and cited the Roman Catholic Archdiocese of Brooklyn's successful Supreme Court challenge to limitations imposed by the state of New York.

"The Court noted specifically that even in a pandemic, you cannot put the Constitution away," Athas said.

Michael Burke, representing the city, pointed out that the federal court hearing was being held via Zoom — for a reason.

"We would all like to be at that courthouse in Key West. We would all like to be on Duval Street at 12:30 a.m. on the first of January, celebrating and having a wonderful time. But we also have to deal with the reality that faces us right now," he said.

"The Bill of Rights, though it's extremely important, obviously … but it's also not a suicide pact," he said.

The curfew has lots of exceptions and is intended to limit alcohol sales and large gatherings, Burke said.

"It does allow for lots and lots of activity between 10 p.m. and 6 a.m. Mr. Day's not confined to his house. It doesn't regulate what he can say or who he can say it to," Burke said.

At a Dec. 3 city commission meeting, Day said that his wife works as a bartender downtown and a three-night curfew would cost his family $3,000 — on top of the tens of thousands they lost when the Keys were closed to visitors for more than two months in the spring.

"You talk about wearing a mask and doing these things and giving the sacrifice up to be a patriot? You're not making patriots," Day said. "You're stealing food off my kids' table. You're not making patriots. You're making terrorists."

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