Osman, In re

• Decision Date: 22 April 1996
• Docket Number: No. 95-P-0061,95-P-0061
• Citation: 672 N.E.2d 1114,109 Ohio App.3d 731
• Parties: In re OSMAN.
• Court: Ohio Court of Appeals

Page 731

109 Ohio App.3d 731

672 N.E.2d 1114

In re OSMAN.

No. 95-P-0061.

Court of Appeals of Ohio Eleventh District, Portage County.

Decided April 22, 1996.

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Barbara R. Oswick, Assistant Prosecuting Attorney, Ravenna, for appellee.

Donald P. Mitchell, Jr., Ravenna, for appellant.

JOSEPH E. MAHONEY, Judge.

On December 9, 1994, appellant, Ronald J. Osman, Jr., then aged fourteen, attended a dance at a local church. The dance ended at approximately 10:00 p.m., at which time appellant and his friends began walking around Ravenna before going to a Taco Bell restaurant for some food. At 11:45 p.m., Patrolman Timothy Mullen of the Ravenna Police Department observed appellant running across a street. Officer Mullen stopped appellant and informed him that it was past curfew. The officer then drove appellant home where they were met by appellant's father.

Upon returning appellant to his home, Officer Mullen, who had only been on the job six days, did not intend to cite appellant for a curfew violation. While he was at appellant's home, however, Officer Mullen received a call on his radio from Sergeant Eatinger, of the Ravenna Police Department, instructing him to charge appellant with a violation of the Ravenna Curfew Ordinance which generally requires fourteen-year-olds to be off the streets by 11:00 p.m.

On January 12, 1995, a complaint was filed against appellant in Portage County Common Pleas Court, Juvenile Division, alleging that appellant was an unruly child due to violation of the Ravenna Curfew Ordinance. The matter proceeded to a hearing before a referee on April 26, 1995. The only witness to testify at the hearing besides Officer Mullen was Sue Osman, the mother of Ronald, who testified as to his age only. The referee found appellant to be an unruly child and sentenced him to five days' detention and one year probation. The referee then suspended all five days of the detention. Appellant timely filed objections to the referee's report. On May 22, 1995, the trial court conducted a hearing on appellant's objections. On June 5, 1995, the trial court overruled appellant's objections and adopted the referee's decision.

Appellant timely filed a notice of appeal with the following assignments of error:

"1. The trial court did error [sic ] in upholding the referee's findings and not declaring the City of Ravenna's Curfew Ordinance unconstitutional.

"2. The trial court's error [sic] against the manifest weight of the evidence in following the referee's findings that the state met its burden of proof on the identification issue.

"3. The trial court judge abused his discretion and erred as a matter of law and denied appellant * * * due process of law by delegation and deferring to the referee['s] judgment, that which the judge has a duty and authority to review being the objection to the referee['s] findings on whether the burden of proof was met in the identification of the appellant-plaintiff.

"4. The trial court's error [sic] as a matter of law and as an abuse of its discretion in upholding the referee['s] findings of a disposition of five days in the juvenile detention center when the mandatory statutory hearing required under R.C. 2151.354 was not held to determine if confinement disposition was necessary treatment for an unruly child (appellant)."

In the first assignment of error, appellant contends that Ravenna's Curfew Ordinance is unconstitutional as it is overly vague. Ravenna Ordinance 509.08 provides:

"(b) No minor fourteen years of age or older and under the age of sixteen years shall be upon the streets, sidewalks, parks or other public places within the City between 11:00 p.m. and 6:00 a.m. of the following day.

" * * *

"(d) The provisions of subsections (a), (b) and (c) hereof shall not apply to any minor accompanied by his or her parent, guardian or other adult person having the care and custody of the minor or when the minor is upon an emergency errand or legitimate business directed by his or her parent, guardian or other adult person having the care and custody of the minor."

Appellant relies on a 1957 appellate decision from California, Alves v. Justice Court of Chico Judicial Dist. (1957), 148 Cal.App.2d 419, 306 P.2d 601, and a common pleas court decision from Van Wert County, In re Mosier (1978), 59 Ohio Misc. 83, 13 O.O.3d 290, 394 N.E.2d 368, to support his claim that the curfew ordinance is unconstitutional. While this court recognizes that there have been many decisions concerning the constitutionality of curfew ordinances from jurisdictions across the country going both ways, Ohio case law is rather sparse. One of the few reported decisions in Ohio, however, besides Mosier, was decided by the Lake County Court of Appeals, when that court was part of the Seventh District Court of Appeals, prior to the creation of the Eleventh District Court of Appeals.

In Eastlake v. Ruggiero (1966), 7 Ohio App.2d 212, 36 O.O.2d 345, 220 N.E.2d 126, the court held that a curfew ordinance that restricts minors from being upon public streets or sidewalks during nighttime periods is constitutionally valid as long as it does not exceed the bounds of reasonableness. Id. at 215, 36 O.O.2d at 347, 220 N.E.2d at 128. The court recognized that the activities and conduct of children under the age of eighteen may be regulated and restricted to a far greater extent than those of adults. The court stated:

"We feel that curfew ordinances for minors are justified as necessary police regulations to control the presence of juveniles in public places at nighttime with the attendant risk of mischief, and that such ordinances promote the safety and good order of the community by reducing the incidence of juvenile criminal activity." Id. at 215, 36 O.O.2d at 347, 220 N.E.2d at 128.

The ordinance in Ruggiero was similar to the one in the case sub judice in that it prohibited a fourteen-year-old from being on the streets or sidewalks between the hours of 11:00 p.m. and 6:00 a.m. "unless accompanied by a parent, guardian or some responsible person over the age of twenty-one (21) years or a member of his family eighteen (18) years or older, or unless he has a legitimate excuse therefor." Id. at paragraph two of the syllabus. In fact, if anything, the Ravenna Curfew Ordinance is less vague in that the exception that allows a child to be on the street during the restricted hours is limited to the child being on "an emergency errand or legitimate business directed by his or her parent, guardian or other adult person having the care and custody of the minor" or when accompanied by an adult.

We agree with the Ruggiero court. Simply stated, there is a compelling governmental interest in reducing juvenile crime while promoting juvenile safety and well-being. The ordinance in question uses the least restrictive means of accomplishing its goals by containing an exception clause that permits minors to remain in public places during the curfew hours in cases of emergency or when directed by his parents for legitimate business.

Appellant takes issue with that portion of the Ravenna ordinance that makes an exception for a minor who is engaged in "legitimate business directed by his or her parent, guardian or other adult person having the care and custody of the minor." Specifically, appellant contends that the term "legitimate business" is too vague. However, the Tenth District Court of Appeals, in a case involving the constitutionality of a daylight curfew, held that a Columbus ordinance which also made an exception when the minor was on "legitimate business" was not unconstitutionally vague. In re Carpenter (1972), 31 Ohio App.2d 184, 191, 60 O.O.2d 287, 291-292, 287 N.E.2d 399, 403-404. We agree. If the minor is out after curfew at the direction of the parent for the parent's benefit, as opposed to the minor's benefit, the presumably more responsible parent will have made the decision rather than the...