Mosier, In re

• Decision Date: 17 November 1978
• Docket Number: No. 4129,4129
• Citation: 394 N.E.2d 368,59 Ohio Misc. 83
• Parties: , 13 O.O.3d 290 In re MOSIER.
• Court: Ohio Court of Common Pleas

Page 83

59 Ohio Misc. 83

394 N.E.2d 368, 13 O.O.3d 290

In re MOSIER.

No. 4129.

Court of Common Pleas of Ohio, Van Wert County.

Nov. 17, 1978.

Donald L. Johnson, Pros. Atty., and George F. Crummey, Asst. Pros. Atty., for plaintiff.

Fuller, Henry, Hodge & Snyder and Stephen B. Mosier, Toledo, for defendant.

WISE, Judge.

The minor child has been charged with being an unruly child by virtue of allegedly violating Ordinance 509.08 of the city of Van Wert commonly referred to as the curfew ordinance.

The minor child filed a motion to dismiss based upon among other things, the constitutional invalidity of the ordinance. The court at the hearing overruled all branches of the motion except that of the unconstitutionality of the ordinance which the court took under advisement. The parties stipulated that the evidentiary hearing on the merits proceed, with same not to be considered if the court held the ordinance invalid on its face, and to be considered if the court held the ordinance constitutionally valid on its face.

The ordinance the child is charged with violating reads as follows:

"509.08 CURFEW FOR MINORS: EXCEPTIONS: ENFORCEMENT.

"(a) Curfew. No minor under eighteen (18) years of age shall remain in or upon any public place or establishment between the hours of 10:30 P.M. and 6:00 A.M. on any night preceding a school day, or between the hours of 12:00 midnight and 6:00 A.M. on all other nights; except that no minor under the age of fourteen (14) years shall remain in or upon any public place or establishment between the hours of 10:30 P.M. and 6:00 A.M. on any night. No graduate of any accredited high school, regardless of age, shall be subject to these regulations.

"The provisions of this section shall not apply to any minor accompanied by a parent, or to a minor upon an errand or other legitimate business directed by the minor's parent or to any minor who is engaged in gainful lawful employment during the curfew hours.

"Any organization or group of persons sponsoring late or all night functions which minors under the age of eighteen (18) are invited to or expected to attend, shall first make application to the Chief of Police for permission to hold the function, stating the nature of the function, the hours during which the function will be held and the category or categories of minors expected to attend and the place or places where the function will be located. The granting of permission shall be within the exclusive discretion of the Chief of Police except that in no case shall permission be granted to the same organization or group of persons more than twice in any one (1) calendar year. The application and permission shall be in writing, and notice thereof shall be given by the Chief to all members of the Police Department, the Van Wert County Sheriff and the Van Wert Post of the Ohio State Highway Patrol. No minor attending a function for which permission has been granted shall be subject to curfew regulations, provided he is in actual attendance at the function and conducts himself in a proper manner.

"(b) Responsibility of Parents. No parent shall knowingly permit any minor to remain in or upon any public place or any establishment contrary to the provisions set forth in Section 509.08.

"(c) Establishment Owners or Operators. No operator of an establishment or his agent or employee shall knowingly permit any minor to remain upon the premises of the establishment contrary to the provisions set forth in subsection (a) above.

"(d) Enforcement. Any police or law enforcement officer who finds a minor apparently violating any provision of this section shall obtain from the minor information concerning his name, age, address and the name of his parent, parents, guardian or custodian. The minor shall be conducted to his home by the officer. Information obtained from the minor, together with any other pertinent facts, shall be forwarded by the Officer of the Van Wert County Juvenile Court within five (5) days, and if requested, the guardian or custodian or other person or persons involved.

"(e) Violation. Any adult, either a parent, guardian, custodian or person responsible for a minor who violates this section is guilty of a minor misdemeanor."

In order to determine whether or not the ordinance infringes upon the constitutional rights of the child the court must first determine the meaning of the ordinance and what conduct is prohibited and what is permitted. This legislation not having a preamble setting forth its purpose nor having a definitions section defining the terms used therein, the court must therefore rely on the standard dictionary definitions of the words used therein in construing the ordinance.

All dictionary definitions used herein are taken from Webster Universal Dictionary, Unabridged International Edition, 1970, Harver Educational Services, Inc., New York, New York.

The first term we come to in the Ordinance that must be defined is "remain." The dictionary gives this definition of the verb intransitive form of the word: to stay, to remain behind, to be left, to continue, endure, to stop, to last, continue, to abide, stay, linger, a staying, tarrying, to hesitate, stand still.

The next thing that must be defined is the phrase "public place or establishment." Here there is no dictionary definition of the phrase "public place" or the phrase "public establishment." Ohio Jurisprudence 2d, Words and Phrases, gives no definition for either phrase. 35 Words and Phrases, West Publishing Company, contains 20 pages of definitions and limitations on the meaning of the words "public place."

Many of the definitions given obviously do not apply and choosing the ones that would give some guidance one must look to the way the words are used in the ordinance. Within the context of our ordinance the following general definitions at pages 433-434, would seem to fit:

"A public place is a place where the public has a right to go and be. State v. Welch, 88 Ind. 308, 310."

"Public place is one attended by public for business, entertainment or similar reasons. State v. Robinson, Conn.Cir.A.D., 23 Conn.Sup. 430, 184 A.2d 188, 189."

"A 'public place' which is a place where the public generally are permitted to assemble. Zimmerman v. State, 77 Okl.Cr. 374, 141 P.2d 809, 811."

"In a prosecution for disturbing a public assemblage, an instruction was given that a public place is any place at which people assemble, or to which people commonly resort for the purposes of business, amusement, recreation, or other lawful purpose. Young v. State, Tex.Cr.App., 44 S.W. 507."

"The words 'public place' denote any place which a municipality or State maintains for the use of the public and includes not only public highways but parks and public buildings and other places. Restatement, Torts, Sec. 417b."

"A 'public place,' within prohibition of solicitation in public place without license, is one which members of the public, by general invitation, attend for reasons of entertainment, business, instruction, or the like. People ex rel. Friedman v. Framer, 139 N.Y.S.2d 331, 337."

"As applied to an inclosure, room, or building, a 'public place' must be considered as one in which by public invitation, members of the public attend for reasons of business, entertainment, instruction, or the like and are welcome as long as they conform to what is customarily done there. People ex rel. Cheever v. Harding, 343 Mich. 41, 72 N.W.2d 33, 35."

"A 'public place' under the express provision of Pen.Code 1895, art. 335, Vernon's Ann.P.C. art. 475, within the meaning of preceding articles, is any public road, street, or alley of a town or city or an inn, tavern, store, grocery, or workshop or place at which people are assembled or commonly resort for the purpose of business, amusement, or recreation or other lawful purpose. King v. Brown, 100 Tex. 109, 94 S.W. 328, 329."

Therefore, it is the conclusion of the court that a minor may during the prescribed hours go anywhere he pleases as long as he stays in motion. This leads to a dilemma when he comes to a stop sign or traffic light. However, since a municipality is prohibited from enacting ordinances in conflict with the general laws of the state of Ohio, the legislative body apparently did not mean to define "remain" so stringently as to prohibit obedience to the traffic laws. Therefore, the court finds the ordinance prohibits the minor from stopping, staying or remaining on any public street or sidewalk (longer than is necessary to obey the traffic laws) parks, school house or grounds, playground, privately owned premises open to the public such as parks, playgrounds, parking lots, churches, theaters, dance halls, retail establishments, including restaurants during the time they are open to the public, the common public area of motels and hotels, including their lounges and dining rooms.

There are several exceptions to the ordinance all of which seem to be quite clear in their meaning except, "to a minor upon an errand or other legitimate business directed by the minor's parent."

"Errand" is defined as: (1) a particular business intrusted to an agent or messenger; (2) a special business, mission with a definite purpose.

"Legitimate" is defined as: lawful or permitted.

"Business" is defined as: (1) regular, habitual, occupation, trade, profession, followed for a livelihood; (2)(a) commercial transactions, trade, finance etc. contracted with one of the learned or liberal professions, (b) particular commercial enterprise; (3) that which has to be done, a special duty, or service imposed by a person's position, office, or circumstances.

The court interprets this exception to mean something that is directed by the parent and is furtherance of the parent's business or profession or for the benefit of the parent as opposed to being for the benefit of the minor.

The minor child attacks the ordinance as being violative of the minor's First Amendment rights and the ...