MR v. State, 2D99-4040.

• Decision Date: 16 August 2002
• Docket Number: No. 2D99-4040.,2D99-4040.
• Parties: M.R., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

832 So.2d 121

M.R., Appellant, v. STATE of Florida, Appellee.

No. 2D99-4040.

District Court of Appeal of Florida, Second District.

August 16, 2002.

Rehearing Denied November 8, 2002.

James Marion Moorman, Public Defender, Bartow, and Brad Permar, 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.

M.R. appeals the court's adjudication of delinquency for violating Tampa's juvenile curfew ordinance. See Tampa, Fla.Code § 14-26(c) (1996). He argues that the ordinance is unconstitutional. This court previously rejected his argument and affirmed the trial court's determination that the ordinance was constitutional. See M.R. v. State, 777 So.2d 995 (Fla. 2d DCA 2000),

quashed, 788 So.2d 957 (Fla.2001). In affirming the trial court, this court applied the heightened scrutiny test. See State v. T.M., 761 So.2d 1140 (Fla. 2d DCA 2000),

quashed, 784 So.2d 442 (Fla.2001). However, this court also certified two questions to the Florida Supreme Court as being of great public importance:

WHAT LEVEL OF SCRUTINY MUST A COURT APPLY WHEN REVIEWING THE CONSTITUTIONALITY OF A JUVENILE CURFEW ORDINANCE?

WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL?

Upon review, the Florida Supreme Court answered the first question by directing that the proper test for determining the constitutionality of a juvenile curfew ordinance is strict scrutiny. Accordingly, without answering the second question, the supreme court remanded this matter back to this court for application of the strict scrutiny test. M.R. v. State, 788 So.2d 957 (Fla.2001).

For the reasons stated in J.P. v. State, 832 So.2d 110 (Fla. 2d DCA 2002), we find that the Tampa ordinance is unconstitutional and reverse the adjudication of delinquency. However, we again certify to the Florida Supreme Court the following questions to be of great public importance:

WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL?

Reversed.

CASANUEVA, J., Concurs.

NORTHCUTT, J., Concurs specially.

NORTHCUTT, Judge, Specially concurring.

I concur in my colleagues' majority opinion with one reservation. In J.P. v. State, 832 So.2d 110 (Fla. 2d DCA 2002), on which today's ruling is based, I wrote a concurring opinion stressing that in my view it is an open question whether the city's interest in protecting children's welfare can ever justify a blanket prohibition against them...