City of Eastlake v. Ruggiero

• Decision Date: 07 September 1966
• Parties: , 36 O.O.2d 345 CITY OF EASTLAKE, Appellee, v. RUGGIERO, Appellant.
• Court: Ohio Court of Appeals

Page 212

7 Ohio App.2d 212

220 N.E.2d 126, 36 O.O.2d 345

CITY OF EASTLAKE, Appellee, v. RUGGIERO, Appellant.

Court of Appeals of Ohio, Seventh District, Lake County.

Sept. 7, 1966.

David P. Freed, Director of Law, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

LYNCH, Judge.

This is an appeal on questions of law from a conviction of defendant in the Willoughby Municipal Court for a violation of Section 583.02 of the Codified Ordinances of the city of Eastlake, a curfew ordinance, which is set out as follows:

'It shall be unlawful for any child under the age of twelve (12) years to be upon the streets or sidewalks during the period from darkness to dawn, or for any child between the ages of twelve (12) and sixteen (16) years to be upon the streets or sidewalks between the hours of 11:00 o'clock p. m. and 6:00 a. m. or for any child between the ages of sixteen (16) years and eighteen (18) years to be upon the streets or sidewalks between the hours of 12:00 midnight and 6:00 o'clock 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. It shall also be unlawful for any parent or guardian of any child under the age of twelve (12) to allow such child to be upon the streets or sidewalks during the period from darkness to dawn, or for any parent or guardian of any child between the ages of twelve (12) and sixteen (16) years to allow such child to be upon the streets or sidewalks between the hours of 11:00 o'clock p. m. and 6:00 o'clock a. m., or for any parent or guardian of any child between the ages of sixteen (16) years and eighteen (18) years to allow such child to be upon the streets or sidewalks between the hours of 12:00 midnight and 6:00 o'clock a. m., unless accompanied by his parent, guardian or some responsible person over the age of twenty one (21) years or of a member of his family eighteen (18) years or older or unless such child has a legitimate excuse therefor. All times referred to herein are local time.'

Defendant resides in Willowick, Ohio. However, at 3 a. m. on the morning of July 9, 1965, defendant's son, age 16, was picked up by two police officers on the streets of the city of Eastlake in the company of Jeffery Lash, a boy age fifteen. Defendant's son and Jeffery Lash were charged with breaking and entering into a gas station. One of the police officers telephoned defendant, who stated that he did not know where his son was at the time in question, but that he did not give his son any permission to be upon the streets at 3 a. m. in the morning.

Defendant testified that on the evening of July 8, 1965, he had given permission to his son to go to the Lash's residence to stay overnight; that his son left home about 9 p. m. with some extra clothing to stay overnight; that on numerous other occasions his son had stayed at the Lash's residence, and his son had also stayed overnight at other friends' homes; that he had never met Mrs. Lash, but that his wife knew Mrs. Lash; and that he went to bed about 11 p. m. without checking with Mrs. Lash to see whether his son actually arrived at her home.

Defendant's first assignment of error attacks the constitutionality of this ordinance on several grounds. His first ground is that a curfew ordinance is unconstitutional because it is unduly restrictive of personal freedoms.

Despite the widespread prevalence of curfew ordinances, there is a surprising paucity of legal authority on this question. However, there is a carefully prepared and thorough article entitled 'Curfew Ordinances and the Control of Nocturnal Juvenile Crime' in 107 Pennsylvania Law Review 66 (1958), in which it is stated that curfew legislation aimed at juveniles received its first substantial support in this country in the latter part of the nineteenth century. By the turn of the century approximately three thousand municipalities and villages had adopted such ordinances. Currently, some forty-eight cities with populations of over one hundred thousand have curfews aimed at minors, which are enforced, and nine others have such laws but admit that they do not enforce them. The National Institute of Municipal Law Officers has prepared a Model Curfew Ordinance (Sections 7.401 and 7.402 of Model Ordinance Service). Oregon is the one state with an outright curfew law, although eleven other states have laws against vagrancy or loitering which to a great extent have the effects of curfews.

As to the constitutional validity of a curfew ordinance that generally restricts minors from being on the public streets or sidewalks at night, no Ohio cases directly in point have come to our attention. However, there are a few cases in other jurisdictions with contradictory results.

Some curfew ordinances have been sustained as a reasonable exercise of the police power to protect the peace and good morals of the community. Thistlewood v. Trial Magistrate for Ocean City (1964), 236 Md. 548, 204 A.2d 688; People v. Walton (1945), 70 Cal.App.2d Supp. 862, 161 P.2d 498. See City of Portland v. Goodwin, 187 Or. 409, 210 P.2d 577, in which the constitutionality of a curfew ordinance applying to everybody, including adults, was upheld.

Other curfew ordinances have been held to be an unlawful exercise of the police power. Alves v. Justice Court of Chico Judicial District (1957), 148 Cal.App.2d 419, 306 P.2d 601; Ex parte McCarver (1898), 39 Tex.Cr.R. 448, 46 S.W. 936, 42 L.R.A. 587, 73 Am.St.Rep. 946.

It has been recognized that the activities and conduct of minor children under eighteen years may be regulated and restricted to a far greater extent than those of adults. Thistlewood v. Trial Magistrate for Ocean City, supra; People v. Walton, supra.

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.

We hold that a curfew ordinance that restricts minor children at nighttime can be constitutionally valid; however, a curfew ordinance must not exceed the bounds of reasonableness. Thistlewood v. Trial Magistrate for Ocean City, supra.

While Section 583.02 of the Codified Ordinances of the city of Eastlake restricts minors from being upon public streets or sidewalks during designated nighttime...