(These are actual cases)

        The City of Tampa and the City of Pinellas Park enacted juvenile curfew ordinances which are very similar.  Under both ordinances, 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. on weekdays and between 12:01 a.m. through 6:00 a.m. on weekends and legal holidays.  The Pinellas Park ordinance applies to any person under 18 years of age who is not legally emancipated; the Tampa ordinance applies to persons under 17 years of age.  Both ordinances provide a number of exceptions to the general prohibitions, including when the juvenile is accompanied by a parent or another authorized adult; participating in activities that involve the exercise of First Amendment rights; engaging in lawful employment; participating in a school, religious, or civic-sponsored function; traveling; involved in an emergency; or on the property or sidewalk of juvenile’s residence or that of an adult neighbor.  The Tampa ordinance also provides exceptions for non-emergency errands with the written approval of a parent (the Pinellas Park ordinance only allows for emergency errands) and for homeless juveniles who use a public place as their usual abode.  Under both ordinances, the first violation results in a written warning and contact with the juvenile’s parents.  However, a juvenile who is subsequently found 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 and fined up to $500.  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.

        J.P. was cited for violation of the Tampa ordinance; T.M., A.N., and D.N. were cited for violations of the Pinellas Park ordinance.  The State Attorney’s Office filed petitions for delinquency against the juveniles.  Prior to trial, the juveniles moved to dismiss the cases arguing that the ordinances are unconstitutional because they infringe on the 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, finding that the juveniles’ parents have a fundamental right to raise their children without governmental intrusion.  The trial court applied the strict scrutiny test in assessing the constitutionality of the Pinellas Park ordinance.  The trial court determined that Pinellas Park has a compelling interest in reducing juvenile crime and victimization, but that the ordinance was 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 concluded that intermediate or heightened scrutiny, rather than strict scrutiny, was applicable where juvenile rights were concerned.  Applying this standard, the district court ruled that both ordinances are constitutional.  See State v. T.M., 761 So. 2d 1140, 1143 (Fla. 2d DCA 2000); J.P. v. State, 775 So. 2d 324 (Fla. 2d DCA 2000).  Even though the district court found the ordinances to be constitutional, it recognized that its decisions turned on the appropriate level of scrutiny under which juvenile curfew ordinances should be reviewed.  Accordingly, the Second District certified two questions to the Florida Supreme Court:  (1) what is the appropriate level of scrutiny to apply when reviewing the constitutionality of a juvenile curfew ordinance; and (2) whether the ordinance is constitutional.  T.M. 784 So. 2d at 1150; J.P.  788 So. 2d at 325.

        In reviewing the decisions in both T.M. and J.P., the Supreme Court held that strict scrutiny should be applied when reviewing a juvenile curfew ordinance and answered the first certified question accordingly.  See T.M. v. State, 784 So. 2d 442, 444 (Fla. 2001); J.P. v. State, 788 So. 2d 953, 953 (Fla. 2001).  The Supreme Court declined to answer the second certified question in each case, quashed the decisions under review, and remanded the cases to the Second District for further proceedings consistent with the Supreme Court’s opinion.  T.M., 784 So. 2d at 444; J.P., 788 So. 2d at 953.

        On remand, the Second District applied the strict scrutiny standard and concluded that both the Tampa and Pinellas Park juvenile curfew ordinances are unconstitutional.  See State v. T.M., 832 So. 2d 118, 121 (Fla. 2d DCA 2002); J.P. v. State, 832 So. 2d 110, 114 (Fla. 2d DCA 2002).  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 the 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 noted that the ordinance was not narrowly tailored because:  1) it imposes criminal sanctions on a juvenile who violates the Tampa ordinance for a second time; and 2) the State did not present statistical data to support the expansive scope of the ordinance.  The district court noted that a juvenile may be adjudicated a delinquent child and may be supervised by or committed to the Department of Juvenile Justice for up to six months, where as a similar Dallas ordinance that was found constitutional by the Fifth Circuit Court of Appeals in Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993), and the model ordinance enacted by the Florida Legislature only impose a civil infraction fine.  Id. at 112, 114.   The district court also noted that the Dallas ordinance was supported by statistical data demonstrating that juvenile crime increased proportionally with age between ten and sixteen years of age, that violent crimes were most likely to occur between 10 p.m. and 1 a.m., and that violent crimes were occurring on public streets and highways at a high frequency.  Id. at 113.  The Tampa ordinance, the court concluded, was more like a San Diego ordinance struck down by the Ninth Circuit Court of Appeals in Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997), because it was too broad and included few exceptions for otherwise legitimate activity by juveniles.  Id. at 114.  Under the Tampa ordinance, the district court concluded, “[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.

        In T.M., the Second District Court noted that the Pinellas Park ordinance is very similar to the Tampa ordinance but is even broader in its application as it applies to 17 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 found that the data did not necessarily support the conclusion that the ordinance reduced juvenile crime during the curfew hours because there was no breakdown of the data as to the time of day of the criminal events.  Id.  Thus, the district court concluded that the Pinellas Park ordinance is not narrowly tailored enough to meet the test of strict scrutiny and affirmed the trial court’s determination that the ordinance is unconstitutional.  Id. at 121.

        In J.P., the Second District Court of Appeal certified a question of great public importance to the Florida Supreme Court regarding the constitutionality of the juvenile curfew ordinance:  

        WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL?

J.P. v. State, 832 So. 2d 110, 114 (Fla. 2d DCA 2002).

        The Second District Court of Appeal certified a similar question of great public importance to the Florida Supreme Court regarding the constitutionality of the juvenile curfew ordinance in T.M.:  

        WHETHER THE PINELLAS PARK JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL?

T.M. v. State, 832 So. 2d 118, 121 (Fla. 2d DCA 2002).

        The Florida Supreme Court granted oral argument and consolidated the two cases.  Oral argument is scheduled for April 9, 2003.

        The attorneys for the State of Florida argue that the ordinances are constitutional under strict scrutiny.  The attorneys claim that the ordinances serve several compelling interests (protecting juveniles from harm and victimization; decreasing the amount of juvenile crime; promoting and enhancing parental control over juveniles; and protecting all citizens and visitors) and that the ordinance is narrowly tailored because legitimate activities are exempted.  The attorneys are asking the Florida Supreme Court should quash the decisions of the Second District Court of Appeal finding the ordinances to be unconstitutional.

        The attorneys for the juveniles argue that the ordinances are unconstitutional because they contain vague terms, gives law officers too much discretion in enforcing the ordinances, are not narrowly tailored to serve the stated compelling interests, and less restrictive alternatives are available.  The attorneys also criticize the criminal penalty as being in conflict with the stated interest of protecting juveniles.  The attorneys are asking the Florida Supreme Court to approve the decisions of the Second District Court of Appeal finding the ordinances to be unconstitutional.

        For a more detailed explanation of the issues in the cases, review the attorneys’ briefs and the appellate decisions in both cases.  In State v. J.P., there are the following briefs:  (1) the initial brief of the Petitioner (the State of Florida); (2) the answer brief of the Respondent (the juvenile J.P.); and (3) the reply brief of the Petitioners.  In State v. T.M., there are the following briefs:  (1) the initial brief of the Petitioner (the State of Florida); (2) the answer brief of the Respondents (the juveniles T.M., A.N., and D.N.); and (3) the reply brief of the Petitioners.