HomeMy WebLinkAboutV (D) Discussion: Juvenile Curfew Issue AGENDA 2-6-96
Item V D
FOLEY & LARDNER
ATTORNEYS AT LAW
SUITE 1800 A MEMBER OF GLOBALEX
III NORTH ORANGE AVENUE WITH MEMBER OFFICES IN
ORLANDO. FLORIDA 32801 BERLIN
JACKSONVILLE TELEPHONE 14071423-7656 BRUSSELS
TALLAHASSEE DRESDEN
TAMPA FACSIMILE 14071 648-1743 FRANKFURT
WEST PALM BEACH MAILING ADDRESS: LONDON
MILWAUKEE PARIS
MADISON POST OFFICE BOX 2193 SINGAPORE
CHICAGO ORLANDO,FL 32802-2193 STUTTGART
WASHINGTON. D.C. TAIPEI
MEMORANDUM
TO: The Honorable Mayor and City Commissioners
of the City of Ocoee
FROM: Paul E. Rosenthal, Esq. , City Attorney
DATE: January 12, 1996
RE: Juvenile Curfew Ordinance
Pursuant to the direction of the City Commission we have
reviewed the current law with respect to juvenile curfew
ordinances. Attached hereto is a memorandum from my associate Mary
Doty which addresses the following subjects:
I. Status of the Law
II. "What Qualifies as Narrowly Tailored"?
III. What Factors Should the City Consider in Deciding Whether
to Adopt a Juvenile Curfew Ordinance?
Also enclosed is a copy of Sections 877.20 thru 877.25, Florida
Statutes, which became effective October 1, 1995 and expressly
authorizes municipalities to adopt curfew ordinances incorporating
the aforementioned statutory provisions.
In the event the City Commission is interested in
pursuing the adoption of a juvenile curfew ordinance, then it is
recommended that the City first assess its juvenile crime problem
as well as its juvenile victimaztion crime in terms of frequency
and location. Based upon such assessment the City Commission
should determine whether there is a compelling interest in adopting
a juvenile curfew ordinance either citywide or in a specific
geographical area within the City. If the City Commission finds
that there is a compelling interest to adopt an ordinance, then
direction should be given regarding those matters addressed in Ms.
ESTABLISHED 1 8 4 2
The Honorable Mayor and City Commissioners
of the City of Ocoee
January 12, 1996
Page 2
Doty's memorandum. We would then recommend that a draft ordinance
be prepared for review and comment by the City Commission and City
staff. After receipt of such input an ordinance could then be
finalized for a public hearing and formal consideration by the City
Commission.
PER:dh
Enclosure
cc: Ellis Shapiro, City Manager
Chief Robert E. Mark
Jean Grafton, City Clerk
Mary A. Doty, Esq.
C:\WPSI\DOCS\OCOE\MEMOS\PERDDHO1.11311/12/96IDEBBIEH I PER:dh
MEMORANDUM
TO: Paul E. Rosenthal
FROM: Mary A. Dotyl, rb
DATE: January 10, 1996
RE: City of Ocoee: Overview of Juvenile Curfew Ordinance
The City of Orlando and Dade County have recently adopted
curfew ordinances which have withstood judicial review. You have
asked me to prepare an overview of juvenile curfew ordinances to
assist the City of Ocoee in evaluating whether the adoption of a
juvenile curfew ordinance is appropriate for the City. My analysis
is set forth below.
I. Status of the Law
Because juvenile curfew ordinances distinguish between classes
of individuals based on age, they are usually challenged on grounds
that they violate the Equal Protection Clause of the Fourteenth
Amendment. Under Equal Protection analysis, if an ordinance
disadvantages a suspect class or impinges upon a fundamental right,
it is subject to strict scrutiny review. Outb v. Strauss, 11 F.3d
488, 492 (5th Cir. 1993) , cert. denied, 62 USLW 3787, 114 S. Ct.
2134, 128 L.Ed. 2d 864 (1994) (involved City of Dallas juvenile
curfew ordinance) .
Article I, S 2 of the Florida Constitution grants to the
citizens of Florida equal protection under the law, analogous to
the scope of the Fourteenth Amendment of the United States
Constitution. Florida courts have applied the same standard of
review in analyzing equal protection claims brought under the
Florida Constitution. See The Florida High School Activities
Assoc. , Inc. v. Thomas, 434 So. 2d 306, 308 (Fla. 1983) . As the
United States Supreme Court has ruled that age is not a suspect
class, see Gregory v. Ashcroft, 501 U.S. 452, 115 L.Ed.2d 410
(1991) , minors invoke strict scrutiny review by arguing that curfew
ordinances impinge on their fundamental rights to move about freely
in public.
Juvenile curfew ordinances under strict scrutiny review are
then analyzed to determine whether they promote a compelling
governmental interest, and if so, whether the ordinance is narrowly
tailored such that there are no less restrictive means available to
achieve the desired end.
Florida curfew ordinances are not generally challenged on the
grounds that they do not promote a compelling governmental
interest. Florida law is long established that the state may treat
the rights of minors differently from the rights of adults because
the well-being of children is within the state's constitutional
regulatory power. See Griffin v. State, 396 So. 2d 152 (Fla.
1981) . Under both the Florida and United States Constitutions,
children do not enjoy the same amount or quality of rights due to
their special nature and vulnerabilities. See Jones v. State, 640
So. 2d 1084 (Fla. 1994) ; Bellotti v. Baird, 443 U.S. 622, 633, 99
S. Ct. 3035, 61 L.Ed.2d 797 (1979) . In the Bellotti case, the
Supreme Court recognized three reasons that allows a court to treat
the rights of minors differently than adults: (1) the peculiar
vulnerabilities of children; (2) their inability to make critical
decisions; and (3) the importance of the parental role in child
rearing. Bellotti, 443 U.S. at 634. Consequently, an interest in
increasing juvenile safety and decreasing juvenile crime are
generally deemed compelling state interests when reviewing the
constitutionality of juvenile curfew ordinances. Outb, 11 F.3d at
488.
The Florida Legislature, by statute, has even defined its
compelling state interest. Section 877.20 provides as follows:
877.20 Local juvenile curfew ordinances;
legislative intent. - It is the intent of the
Legislature to protect minors in this state
from harm and victimization, to promote the
safety and well-being of minors in this state,
to reduce the crime and violence committed by
minors in this state, and to provide counties
and municipalities with the option of adopting
a local juvenile curfew ordinance by
incorporating by reference the provisions of
ss. 877.20-877.25.
Sections 877.21-24 further expand the Legislature's intent
regarding curfew ordinances. However, S 877.25 provides that these
statutory provisions do not apply in any county or municipality
unless that county or municipality has adopted a curfew ordinance
that incorporates these statutory provisions by reference. Section
877.25 also states that counties and municipalities are not
precluded from adopting ordinances more stringent than the curfew
outlined in the statute.
As Florida law has established that there is a compelling
state interest in enacting juvenile curfew laws, the case law
reviewing existing ordinances has centered on whether they are
narrowly tailored enough to meet constitutional scrutiny. My
research indicates that five Florida ordinances have been subjected
to judicial review.
The first is a Pensacola ordinance reviewed in the case of
W.J.W. v. State, 356 So. 2d 48 (Fla. 1st DCA 1978) . This ordinance
prohibited minors from being on the streets, or public places,
including public amusements, between the hours of 11:00 p.m. and
-2-
5:00 a.m. each day. The ordinance, however, exempted minors who
were employed. The ordinance was found unconstitutional because it
was too broad. The court found that it would prohibit minors from
participating in school, recreational, and church activities, and
other lawful conduct.
In S.W. v. State, 431 So. 2d 339 (Fla. 2d DCA 1983) ,
Palmetto's curfew ordinance was invalidated. Similar to the
Pensacola ordinance, the Second District Court of Appeal found
this ordinance to be too broad because it prohibited legitimate
activities that occur in public places after 10: 00 p.m.
A Jacksonville ordinance came under fire in K.L.J. v. State,
581 So. 2d 920 (Fla. 1st DCA 1991) and was struck down as
unconstitutionally vague and overbroad. The ordinance exempted
minors from the ordinance who were on "legitimate business." This
term, however, was undefined in the ordinance and had a potential
for selective enforcement.
Recent developments, however, are more helpful. Both the City
of Orlando and Dade have recently adopted juvenile curfew
ordinances that have been sustained by the District Courts of
Appeal. Orlando's ordinance was adopted in 1994 and immediately
was subjected to legal challenge in the case of Sansbury v. City of
Orlando. The trial court denied Sansbury's Motion for a
Preliminary Injunction and Sansbury appealed to the Fifth District
Court of Appeal in Sansbury v. City of Orlando, 654 So. 2d 965
(Fla. 5th DCA 1995) . The Fifth District Court of Appeal affirmed
the trial court without an opinion but cited the Bellotti and Jones,
cases which both establish that the state has a compelling interest
in protecting juveniles.
The other ordinance is one enacted by Dade County in January
1994. Like Orlando, this ordinance was immediately subject to
challenge in the circuit court. The circuit court found the
ordinance unconstitutional and permanently enjoined its
enforcement. The Third District Court of Appeal, in the case of
Metropolitan Dade County v. Pred, 20 Fla. L. Weekly D2451 (Nov. 1,
1995) , however, reversed the circuit court, finding the ordinance
constitutional. This opinion was just filed November 1, 1995 and
a motion for rehearing en banc is still pending. The Third
District Court of Appeal opinion is cryptic and simply states that
the ordinance does not violate any minor's rights under either the
Florida or United States Constitutions.
In summary, it is clear that juvenile curfew ordinances are
sustainable under Florida law. There is however, little judicial
guidance as to what makes a juvenile curfew ordinance
constitutional.
-3-
II. What qualifies as "narrowly tailored?"
What is clear is that any juvenile curfew ordinance must be
narrowly tailored to be constitutional. What qualifies as
"narrowly tailored" must be gleaned from the five Florida
decisions. The Florida Attorney General, when asked, by the Tampa
City Council what factors should be considered in adopting a
juvenile curfew ordinance, responded as follows:
Recent court decisions require a narrowly
drawn juvenile curfew ordinance that furthers
a compelling state interest and provides
specific exceptions or defenses which
adequately advise what conduct is allowed,
while providing limitations that minimally
restrict a minor's right to be on the street
and do not infringe on basic constitutional
rights.
Op. Att'y. Gen. Fla. 94-2 (1994) . The Attorney General then
recommended following the exceptions or defenses outlined in the
Qutb case, which are as follows:
1. minors accompanied by parents and legal
guardians;
2. minors traveling to and from places of
employment;
3 . minors participating in educational,
civic, or religious activities;
4. emergency situations;
5. minors traveling on interstate highways;
and
6. minors on the sidewalk in front of the
minor's home or the home of a neighbor.
Qutb, 11 F.3d at 390. Fla. Stat. §877.24 also incorporates these
defenses.
The City of Orlando ordinance contains all of these defenses
except the one related to minors on the sidewalk in front of their
home. I surmise this is because the City of Orlando ordinance is
limited geographically to a defined commercial/business area.
The Dade County ordinance, in addition to addressing the Outb
defenses adds the following exceptions: minors exercising First
Amendment rights protected by the United States and Florida
Constitutions; married minors or those who have been emancipated;
-4-
and minors who are homeless or use a public or semi-public place as
their usual place or abode.
As stated above, both the City of Orlando and Dade County
ordinances have been upheld by their respective District Courts.
Although neither District Court has expressly said so, the
ordinances must necessarily be narrowly tailored to have been
upheld.
III. What factors should the City consider in deciding whether to
adopt a juvenile curfew ordinance?
As previously mentioned, the compelling state interest that
justifies limiting the rights of minors are the prevention of
juvenile crime, the protection of juveniles from crime, and the
interest in promoting parental responsibility. The City of Dallas,
in the Outb decision, and the City of Orlando, in its appellate
brief, cite juvenile crime, and juvenile victimization crime
statistics in support of their ordinances. The Dade County
ordinance itself addresses the juvenile crime crisis in Dade County
as well as the consequences of crimes committed against juveniles.
The ordinance, however, does not contain any statistics.
The City of Orlando ordinance differs from the Dallas or Dade
County ordinances in that it has a limited geographical scope
rather than being city or county wide. The ordinance is limited to
a specifically defined area in downtown Orlando. The City's
appellate brief indicates that its crime statistics for this
limited are showed that juvenile victimization increased 24% from
1992 to 1993. Juvenile arrests in this area daring the curfew
hours increased 125% from 1992 to 1993 . In 1393, 27% of all
juvenile arrests in the City were made in this downtown area. Of
all arrests made during the curfew hours in downtown Orlando, 13%
of them were juvenile arrests. Based on these statistics, the City
of Orlando elected to confine its curfew ordinance to this limited
geographical area.
My recommendation is that the City of Ocoee assess its
juvenile crime problem as well as its juvenile victimization crime
in terms of frequency and location. Once the City assesses its
juvenile crime problem, it should determine whether the City has a
compelling interest in adopting a curfew ordinance either city-wide
or in a specific geographical area. Regardless of the approach,
however, juvenile curfew ordinances may only be directed to public
and semi-public places. Any juvenile curfew ordinance which
encompasses residential areas would be limited to public streets,
sidewalks, parks, or other semi-public places within that area.
-5-
CONCLUSION
As juvenile curfew ordinances are sustainable if they promote
a compelling governmental interest and are narrowly tailored to
achieve that end, the City of Ocoee must first assess its juvenile
crime and juvenile victimization statistics to determine whether a
compelling state interest exists. If the City elects to develop a
juvenile curfew ordinance, I recommend that it mirror the City of
Orlando ordinance and the Dallas ordinance addressed in the Outb
decision.
-6-
.41111411r.—
F.S. 1995 MISCELLANEOUS CRIMES Ch. 877
(2) For the purposes of this section, the term "offer in this state,and to provide counties and municipalities
to sell"includes every inducement,solicitation,attempt, with the option of adopting a local juvenile curfew ordi-
or printed or media advertisement to encourage a per- Hance by incorporating by reference the provisions of
son to purchase an identification card. ss. 877.20-877.25.
(3) All records required to be maintained by this sec- Hbmry.—s 82,ch.94-209.
tion shall be available for inspection without warrant 877 21 Sections 877.20-877.25; definitions.—As
upon reasonable demand by any law enforcement off i- used . ss.S8ections 77.25, term:
cer,including,but not limited to,a state attorney investi- "Emergency" means, theaunforeseen combination
gator or an investigator for the Division of Alcoholic Bev-
erages and Tobacco. of circumstances which results in a situation that
(4) A person who violates the provisions of this sec- requires immediate attention to care for or prevent seri-
tion is guilty of a felony of the third degree, punishable ous bodily injury,loss of life,or significant property loss.
as provided in s.775.082, s.775.083,or s. 775.084.The The term includes, but is not limited to, a fire,a natural
failure to produce the documents required by subsec- disaster, or an automobile accident.
tion(1), upon lawful request therefor, is prima facie evi- (2) "Establishment" means a privately owned place
dence of a violation of this section. of business to which the public is invited,including,but
(5) The state attorney for any county in which a viola- not limited to,a place of amusement or a place of enter-
tion of this section occurs or the Attorney General may tainment.
enjoin any sale or offer for sale in violation of this section (3) "Minor"means any person under 16 years of age.
by temporary and permanent injunction by application (4) "Parent"means a person who has legal custody
to any court of competent jurisdiction. of a minor as a:
History.—s.8,ch.84_297. (a) Natural or adoptive parent.
(b) Legal guardian.
877.19 Hate Crimes Reporting Act.— (c) Person who stands in loco parentis to the minor.
(1) SHORT TITLE.—This section may be cited as the (d) Person who has legal custody of the minor by
"Hate Crimes Reporting Act." order of the court.
(2) ACQUISITION AND PUBLICATION OF DATA.— (5) "Public place"means a place to which the public
The Governor, through the Florida Department of Law has access, including, but not limited to, streets, high-
' Enforcement,shall collect and disseminate data on incl- ways, public parks, and the common areas of schools,
' dents of criminal acts that evidence prejudice based on hospitals,apartment houses,office buildings, transpor- '
race, religion, ethnicity, color, ancestry, sexual orienta- tation facilities, and shops.
tion, or national origin. All law enforcement agencies (6) "Remain"means to stay unnecessarily in a partic-
shall report monthly to the Florida Department of Law ular place.
Enforcement concerning such offenses in such form and Hiseory.-s.83,ch.94-209.
in such manner as prescribed by rules adopted by the
' department.Such information shall be compiled by the 877.22 Minors prohibited in public places and
department and disseminated upon request to any local establishments during certain hours; penalty; proce-
law enforcement agency, unit of local government, or dure.—
state agency. (1)(a) A minor may not be or remain in a public place
r (3) LIMITATION ON USE AND CONTENT OF DATA. or establishment between the hours of 11:00 p.m. and
" Such information is confidential and exempt from s. 5:00 a.m. of the following day, Sunday through Thurs-
119.07(1).Data required pursuant to this section shall be day, except in the case of a legal holiday.
used only for research or statistical purposes and shall (b) A minor may not be or remain in a public place
> not include any information that may reveal the identity or establishment between the hours of 12:01 a.m. and
I of an individual victim of a crime.The exemption from s. 6:00 a.m. on Saturdays, Sundays, and legal holidays.
f 119.07(1) provided in this subsection is subject to the (2) A minor who has been suspended or expelled
Open Government Sunset Review Act in accordance from school may not be or remain in a public place, in
with 's. 119.14. an establishment,or within 1,000 feet of a school during
i (4) ANNUAL SUMMARY.—The Attorney General the hours of 9:00 a.m. to 2:00 p.m. during any school
shall publish an annual summary of the data required day.
e pursuant to this section. (3) A minor who violates this section shall receive a
f4htory.-s.1,ch.89-132;s.2.ch.91-83;s.1,ch.94-125. written warning for his first violation. A minor who vio-
'No° —R
g A. Repealed by s.1,ch.95-217. lates this section after having received a prior written
1- B. Section 4,ch.95-217,provides that"tn]otwithstanding any provision of law warning is guilty of a civil infraction and shall pay a fine
to the contrary,exemptions from chapter 119,Florida Statutes,or chapter 286,Floc of$50 for each violation.
t. Ida Statutes,which are prescribed by law and are specifically made subject to the
Open Government Sunset Review Act in accordance with section 119.14,Florida (4) If a minor violates a curfew and is taken into cus-
' Statutes.are not subject to review under that act,and are not abrogated by the oper•
3- ation of that act,after October 1,1995.' tody, the minor shall be transported immediately to a
d police station or to a facility operated by a religious,
le 877.20 Local juvenile curfew ordinances; legisla- charitable,or civic organization that conducts a curfew
tive intent.—It is the intent of the Legislature to protect program in cooperation with a local law enforcement
le minors in this state from harm and victimization, to pro- agency.After recording pertinent information about the
,g mote the safety and well-being of minors in this state, minor,the law enforcement agency shall attempt to con-
to reduce the crime and violence committed by minors tact the parent of the minor and, if successful, shall
1793
Ch. 877 MISCELLANEOUS CRIMES F.S. 1995
request that the parent take custody of the minor and (3) Attending or traveling directly to or from an activ-
shall release the minor to the parent. If the law enforce- ity that involves the exercise of rights protected under
ment agency is not able to contact the minor's parent the First Amendment of the United States Constitution.
within 2 hours after the minor is taken into custody, or (4) Going directly to or returning directly from lawful
if the parent refuses to take custody of the minor, the employment,or who is in a public place or establishment
law enforcement agency may transport the minor to his in connection with or as required by a business, trade,
residence or proceed as authorized under part III of profession, or occupation in which the minor is lawfully
chapter 39.
History.—s 84,ch.94-209. engaged.
(5) Returning directly home from a school-
877.23 Legal duty of parent;penalty.— sponsored function, a religious function, or a function
(1) The parent of a minor has a legal duty and sponsored by a civic organization.
responsibility to ensure that the minor does not violate (6) On the property of, or on the sidewalk of, the
s. 877.22(1). place where he resides, or who is on the property or
(2) The parent of a minor has a legal duty and sidewalk of an adult next-door neighbor with that neigh-
responsibility to personally supervise, or arrange for a bor's permission.
responsible adult to supervise, the minor so that the (7) Engaged in interstate travel or bona fide intra-
minor does not violate s. 877.22(2). state travel with the consent of the minor's parent.
(3) The parent of a minor who knowingly permits the (8) Attending an organized event held at and spon-
minor to violate s.877.22(1)or(2)shall receive a written sored by a theme park or entertainment complex as
warning for a first violation.A parent who knowingly per- defined in s. 509.013(9).
mits the minor to violate s. 877.22(1)or(2)after having History.—s.86,ch.94-209.
received a prior written warning is guilty of a civil infrac-
tion and shall pay a fine of$50 for each violation. 877.25 Local ordinance required;effect.—Sections
•
History.s.85,ch.94-209. 877.20-877.24 do not apply in a county or municipality
unless the governing body of the county or municipality
877.24 Nonapplication of s. 877.22.—Section adopts an ordinance that incorporates by reference the
877.22 does not apply to a minor who is: provisions of ss.877.20-877.24.Sections 877.20-877.24
(1) Accompanied by his parent or by another adult do not preclude county or municipal ordinances regulat-
authorized by the minor's parent to have custody of the ing the presence of minors in public places and estab-
minor. lishments which provide restrictions more stringent or
(2) Involved in an emergency or engaged, with his less stringent than the curfew imposed under s.877.22.
parent's permission, in an emergency errand. History.-s.87,ch.94-209.
•
•
•
•
1794