JP v. State, 2D97-1736.

• Decision Date: 16 August 2002
• Docket Number: No. 2D97-1736.,2D97-1736.
• Citation: 832 So.2d 110
• Parties: J.P., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

832 So.2d 110

J.P., Appellant, v. STATE of Florida, Appellee.

No. 2D97-1736.

District Court of Appeal of Florida, Second District.

August 16, 2002.

Rehearing Denied September 26, 2002.

James Marion Moorman, Public Defender, Bartow, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michael J. Neimand, Assistant Attorney General, Tampa, for Appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

DAVIS, Judge.

This matter is before us on remand from the Florida Supreme Court. The issue is the constitutionality of the City of Tampa's juvenile curfew ordinance. In the initial appeal, we had upheld the ordinance under a heightened scrutiny test. The Florida Supreme Court reversed and remanded for us to consider the ordinance under a strict scrutiny standard. We hold the ordinance unconstitutional under this test.

J.P., a child, challenges the trial court's order adjudicating him delinquent and committing him to the Department of Juvenile Justice. He argues that the juvenile curfew ordinance of the City of Tampa is unconstitutional and that his adjudication of delinquency based on a violation of that ordinance must be overturned.

J.P. was taken into custody at 2:05 a.m. on December 7, 1996, while riding his bicycle on the streets of Tampa. The State filed a petition for delinquency charging J.P. with a violation of the city's curfew ordinance. J.P. moved to have the curfew ordinance declared unconstitutional. The trial court denied the motion but agreed that the motion was dispositive. J.P. then pleaded no contest to the petition, reserving his right to appeal the trial court's ruling on his motion.

On direct appeal, this court affirmed. Citing State v. T.M., 761 So.2d 1140 (Fla. 2d DCA 2000), quashed, 784 So.2d 442 (Fla.2001), we concluded that the constitutionality of the Tampa ordinance should be measured by a heightened scrutiny test. Deciding that the ordinance was substantially related to an important government interest, we determined that the ordinance was constitutional and affirmed the trial court's decision. However, in doing so, we certified two questions to the Florida Supreme Court as being of great public importance:

(1) WHAT LEVEL OF SCRUTINY MUST A COURT APPLY WHEN REVIEWING THE CONSTITUTIONALITY

OF A JUVENILE CURFEW ORDINANCE?

(2) WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL?

J.P. v. State, 775 So.2d 324, 325 (Fla. 2d DCA 2000), quashed, J.P. v. State, 788 So.2d 953 (Fla.2001)

.

On review, the Florida Supreme Court answered the first of our questions by concluding that the proper standard of review of a juvenile curfew ordinance is strict scrutiny. See J.P. v. State, 788 So.2d 953 (Fla.2001)

.¹ Without addressing the second question, the supreme court remanded the matter back to this court to apply the strict scrutiny test to the ordinance.

For the ordinance to withstand the strict scrutiny test, the city must have a compelling government interest in regulating the activities of minors during the hours of the curfew and the ordinance must be narrowly tailored to accomplish its goals by the least intrusive means available. See In Re T.W., 551 So.2d 1186 (Fla.1989)

; Qutb v. Strauss, 11 F.3d 488 (5th Cir.1993). We conclude that although the city may have a compelling governmental interest in controlling the whereabouts of juveniles during the late night hours, this ordinance is not drafted narrowly enough to meet this strict scrutiny test.

To be narrowly tailored, there must be some "nexus" between the governmental interest and the classification created by the ordinance. Qutb, 11 F.3d at 493. Additionally, the ordinance must ensure that the broad curfew coverage minimizes any burden on the minor's fundamental rights. Nunez v. City of San Diego, 114 F.3d 935 (9th Cir.1997). In this respect, the exemptions or defenses to application of the ordinance "are the most important consideration in determining whether this ordinance is narrowly tailored." Qutb, 11 F.3d at 493-94. Accordingly, we must look to see if the need for the ordinance as demonstrated by the city, supports the limitations on the minors' rights and whether the exemptions are sufficiently broad to protect innocent, legitimate activities of juveniles.

The Tampa ordinance prohibits a person under the age of seventeen from being in public or semi-public places in the City of Tampa during curfew hours. As defined by the ordinance, from Sunday through Thursday the curfew begins at 11:00 p.m. and continues until 6:00 a.m. On Saturdays and Sundays, the curfew is in effect from 12:00 a.m. until 6:00 a.m. The ordinance does allow for certain exceptions. The curfew does not apply when the minor is accompanied by a parent or is on an errand for a parent with a written note from the parent. Additionally, attendance at certain functions that are either sponsored by school or religious groups or are involved in the exercise of First Amendment rights is exempt. The ordinance provides that as a penalty, a juvenile found to be in violation may be adjudicated a delinquent child and may be supervised by or committed to the Department of Juvenile Justice for a period not to exceed six months.²

In Qutb, the federal appellate court upheld the constitutionality of a Dallas, Texas, curfew that was comparable to the Tampa ordinance in that it applied to those under seventeen years of age and incorporated the same time limitations and scope. Although the exceptions were also similar, the Dallas ordinance also excepted minors running errands for a parent or guardian without requiring a written statement from the parent, as the Tampa ordinance requires. Additionally, the penalty provision only provided for the imposition of a fine.

The appellate court in Qutb applied the strict scrutiny test and concluded that the ordinance was directly responsive to the need identified by the city council and that it was narrowly drafted. In doing so, the court concluded that when balanced with the "compelling interest sought to be addressed," the imposition on the rights of the juveniles was "minor." Qutb, 11 F.3d at 495. In reaching that conclusion, however, the court recited the statistical data that was presented to the trial court indicating the city's need to impose such a curfew. This data demonstrated that juvenile crime increased proportionally with age between ten and sixteen years of age, that violent crimes were most likely to occur between 10:00 p.m. and 1:00 a.m., and that the frequency of violent crimes occurring on the public streets and highways was significantly high. It also showed the frequency of juveniles being charged with crimes of violence. The court concluded that these statistics demonstrated that the ordinance met the state's compelling interest.

By contrast, in the instant case, the State failed to present any statistical data to the trial court in support of the need for the Tampa ordinance.³ Although we may find that there is a compelling state interest generally in the protection of juveniles from victimization and in reducing juvenile crime, we must strictly measure the exceptions against such a generalized finding to determine if the ordinance is narrowly tailored.

The curfew ordinance of San Diego was found to fail the strict scrutiny test by the Ninth Circuit Court of Appeals in Nunez, 114 F.3d 935. That ordinance was also similar to the Tampa ordinance, including the imposition of criminal sanctions for violations. In that case, the City also provided some statistical evidence to show that a curfew would help reduce crime. However, the court found that the City failed to show that the juvenile curfew was a particularly effective means in achieving the desired reduction. Id. at 948. In reviewing the exceptions, the court concluded that the ordinance was not narrowly...