State v. T.M., No. SC02-2452 (FL 11/18/2004), No. SC02-2452.

CourtUnited States State Supreme Court of Florida
Writing for the CourtQuince
PartiesSTATE OF FLORIDA, Petitioner, v. T.M., et al., Respondents.
Decision Date18 November 2004
Docket NumberNo. SC02-2452.

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T.M., et al., Respondents.
No. SC02-2452.
Supreme Court of Florida.
November 18, 2004.

Application for Review of the Decision of the District Court of Appeal, Certified Great Public Importance, Second District, Case Nos. 2D97-1736 and 2D98-3778, (Hillsborough and Pinellas Counties).

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Michael J. Neimand, Assistant Attorney General, Fort Lauderdale, Florida, for Petitioner.

James Marion Moorman, Public Defender, Richard J. Sanders, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, Bruce G. Howie of Piper, Ludin, Howie and Werner, P.A., St. Petersburg, and Robert L. Hambrick, Clearwater, Florida, for Respondent.



We have for review two decisions of the Second District Court of Appeal in which the district court certified questions of great public importance regarding the constitutionality of juvenile curfew ordinances enacted by the city councils of Tampa and Pinellas Park. See J.P. v. State, 832 So. 2d 110 (Fla. 2d DCA 2002)

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(finding Tampa curfew ordinance unconstitutional); State v. T.M., 832 So. 2d 118 (Fla. 2d DCA 2002) (finding Pinellas Park curfew ordinance unconstitutional). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

History of the Cases

These cases are before this Court for the second time. The City of Tampa and the City of Pinellas Park enacted similar juvenile curfew ordinances. J.P. was cited for violation of the Tampa ordinance; T.M., A.N., and D.N. were cited for violation of the Pinellas Park ordinance. The State Attorney's Office filed petitions for delinquency against these juveniles. Prior to trial, the juveniles moved to dismiss their cases, arguing that the ordinances are unconstitutional because the ordinances infringe on their fundamental rights of free speech, association, and assembly, are vague and overbroad, and are inconsistent with state law. In the case of J.P., the trial court denied the motion, and J.P. pled no contest but reserved the right to appeal the denial of his motion. In the case of T.M., A.N., and D.N., the trial court granted the juveniles' motions to dismiss. The trial court reasoned that the juveniles' parents have a fundamental right to raise their children without governmental intrusion. In assessing the constitutionality of the Pinellas Park ordinance, the trial court applied the strict scrutiny test. The trial court determined that while Pinellas Park has a compelling interest in reducing juvenile crime and

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victimization, the ordinance is not narrowly tailored in the least restrictive manner to achieve that interest.

In both cases, the losing party appealed to the Second District Court of Appeal. In reviewing the ordinances, the Second District applied intermediate or heightened scrutiny, rather than strict scrutiny. Under this standard, the district court ruled that both ordinances were constitutional. State v. T.M., 761 So. 2d 1140, 1143 (Fla. 2d DCA 2000), quashed, 784 So. 2d 442 (Fla. 2001); J.P. v. State, 775 So. 2d 324, 324 (Fla. 2d DCA 2000), quashed, 788 So. 2d 953 (Fla. 2001). In both cases, the Second District also certified two questions to this Court, asking what level of scrutiny is applicable in reviewing the constitutionality of a juvenile curfew ordinance and whether the ordinances are constitutional. T.M., 761 So. 2d at 1150; J.P., 775 So. 2d at 325.

In reviewing the decisions in both T.M. and J.P., this Court held that strict scrutiny should be applied when reviewing a juvenile curfew ordinance and answered the first certified question accordingly. T.M. v. State, 784 So. 2d 442, 444 (Fla. 2001); J.P. v. State, 788 So. 2d 953, 953 (Fla. 2001). However, this Court declined to answer the second question regarding the constitutionality of the ordinances, quashed the decisions under review, and remanded the cases to the Second District for further proceedings. T.M., 784 So. 2d at 444; J.P., 788 So. 2d at 953.

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On remand, the Second District applied the strict scrutiny standard and concluded that both the Tampa and Pinellas Park juvenile curfew ordinances are unconstitutional. J.P., 832 So. 2d at 114; T.M., 832 So. 2d at 121. In J.P., the Second District concluded that, while the City of Tampa may have a compelling governmental interest in controlling the whereabouts of juveniles during late night hours, the ordinance is not narrowly tailored to accomplish this goal by the least intrusive means available. 832 So. 2d at 112. The district court concluded that the ordinance was not narrowly tailored because it imposes criminal sanctions on a juvenile who violates the Tampa ordinance for a second time and because the State did not present statistical data to support the expansive scope of the ordinance. Id. at 113-14. The district court explained that under the Tampa ordinance, "[o]therwise innocent conduct by a minor with the permission of his parent(s) is criminalized . . . simply because he/she is in a public place or establishment after hours." Id. at 114.

In T.M., the Second District noted that the Pinellas Park ordinance is very similar to the Tampa ordinance but is even broader in its application because it applies to seventeen-year-olds and provides an exception only for errands involving emergencies. 832 So. 2d at 120. Although the State did present statistical data showing a decrease in some categories of juvenile crime after the ordinance was enacted, the district court concluded that this data did not

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necessarily support the conclusion that the ordinance reduced juvenile crime during the curfew hours as the data did not indicate the time of day in which the criminal events occurred. Id. Thus, the district court concluded, the Pinellas Park ordinance is not narrowly tailored to meet the test of strict scrutiny. The district court affirmed the trial court's determination that the Pinellas Park ordinance is unconstitutional. Id. at 121.

In both J.P. and T.M., the Second District certified a question of great public importance to this Court regarding the constitutionality of the juvenile curfew ordinances. This Court granted oral argument and sua sponte consolidated the two cases for purposes of oral argument.

The Ordinances

Under the Pinellas Park ordinance, it is unlawful for a juvenile to be or remain in a public place or establishment between 11:00 p.m. and 6:00 a.m. of the following day, Sunday through Thursday, and 12:01 a.m. through 6:00 a.m. on Saturdays, Sundays, and legal holidays. The ordinance defines a juvenile as any person under eighteen years of age who is not legally emancipated. Parents also violate the ordinance if they knowingly allow their child to violate the curfew. See Pinellas Park, Fla., Code § 16-124. The Pinellas Park ordinance provides the following exceptions for juveniles who are in public during the restricted hours: (1) when the juvenile is accompanied by his or her parent or by another adult at

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least twenty-one years old who is authorized by the juvenile's parent to have custody; (2) when the juvenile is involved in an emergency or engaged, with his or her parent's permission, in an emergency errand; (3) when the juvenile is attending or traveling to or from an activity that involves the exercise of rights protected under the First Amendment to the United States Constitution (e.g., religious services, government meetings, political party meetings); (4) when the juvenile is going to and from lawful employment, or in a public place or establishment in connection with or as required by a business, trade, profession, or occupation which the juvenile is lawfully engaged in; (5) when the juvenile is returning directly home from a school-sponsored, religious, or civic organization function; (6) when the juvenile is on the property or on the sidewalk of the juvenile's own residence or an adult next-door neighbor's residence with that neighbor's permission; (7) when the juvenile is engaged in interstate travel or bona fide intrastate travel with the consent of the juvenile's parent; (8) when the juvenile is attending an organized event sponsored by a theme park or entertainment complex; or (9) when the juvenile is in a public place or establishment as otherwise authorized by the city council for an activity or event not specifically outlined in the other exceptions and which is sponsored by a school, religious, civic, social, or other similar organization or group. Id. § 16-124(E). A juvenile is not criminally charged until his or her second violation of the ordinance. The first violation

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results in a written warning and contact with the juvenile's parents. However, a juvenile who is subsequently found in violation can 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 and can be fined up to $500. Id. § 16-124(D)3. A parent of a juvenile who violates the ordinance receives a written warning for the first violation, but may be imprisoned for up to six months and fined up to $500 for subsequent violations. Id. § 16-124(F)2.

The Tampa juvenile curfew ordinance is essentially the same as the Pinellas Park juvenile curfew ordinance. See Tampa, Fla., Code § 14-26. The following significant differences appear in the Tampa ordinance: (1) it applies to persons under seventeen years of age; (2) it provides an exception for nonemergency errands with the written approval of a parent; (3) it provides an exception for homeless juveniles who use a public place as their usual abode; (4) it imposes criminal liability on business owners or operators for knowingly permitting a juvenile to remain on business premises during curfew hours; and (5) and it permits a fine of up to $1000 and up to six months' incarceration for a second or subsequent violation. See Tampa, Fla., Code §§ 1-6(a), 14-26(c)-(g).

Standard of Review


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