Curfews in Florida

Update: As of Tuesday, June 2, 2020, the citywide curfew that went into effect on Sunday, May 31st has been lifted for the City of Tampa.

Tampa’s last curfew began on May 31, 2020, when the City of Tampa announced an immediate citywide curfew that applied to all people and businesses in the City of Tampa from 7:30 p.m. – 6:00 a.m.

Under Section 252.50, Florida Statutes, a violation of the Tampa Curfew Order, can be charged as a second degree misdemeanor which carries a penalty of up to sixty (60) days imprisonment and/or a $500 fine. The curfew order in Tampa, FL, is made pursuant to the emergency powers provided by Chapter 252, Florida Statutes.

Alternatively, the curfew is also being enforced through an Executive Order pursuant to City of Tampa Code Section 1-6. A violation of the Executive Order enforced by Section 870.048, Florida Statutes, is a first degree misdemeanor that carries a criminal penalty of up to 12 months in jail and/or a $1,000 fine.

For the unincorporated areas of Hillsborough County, Sheriff Chad Chronister decided not to institute a curfew because he refuses “to punish law-abiding citizens due to the lawless actions of a handful of criminals.”

With the coronavirus (COVID-19) outbreak and the possibility of civil unrest, government officials are enacting curfews. Can Hillsborough County, the City of Tampa, or other cities or counties in Florida enact city or county curfews that impose criminal penalties?

Sections of both Chapters 870 and 252, Florida Statutes., deal with curfews during emergency circumstances. Those statutes include:

• Chapter 870, Florida Statutes, entitled “Affrays; Riots; Routs; Unlawful Assemblies,” explains the procedures under which state and local authorities can declare a state of emergency during times where violence is occurring or about to occur.
• Section 870.041, F.S. and Section 870.043, F.S., allows local authorities to declare a state of emergency if there is violence that involves rioting, general public disorder, widespread disobedience of the law, and substantial injuries to persons or property.
• Section 870.045, F.S., authorizes a curfew.
• Section 870.044, F.S., provides that, if there is a declared state of emergency, guns and ammunition can be restricted or prohibited.
• Section 870.048, F.S., declares that violation of such emergency measures is a first degree misdemeanor.
• Section 252.311, F.S., and Section 252.38(3)(a), F.S., deal with emergency management powers of political subdivisions including providing for the health and safety of persons and property in such emergencies.
• Section 252.50, F.S., provides that any violations of said chapter are punishable as a second degree misdemeanor.

The legislative intent behind Chapter 870 is to deal with situations where there is widespread civil unrest and rioting and looting. For example, Florida’s “State Emergency Management Act”  found in Chapter 252, Florida Statutes, mentions efforts to deal with natural and other emergencies.

Likewise, Chapter 252, F.S., was created to give broad authorization to local and state governments to deal with emergencies arising from a wide range of natural and other disasters.

Attorneys for Curfew Violations in Tampa, FL

The attorneys at Sammis Law Firm help clients accused of crimes that implement constitutional rights.

Although the best course of action is to simply follow any recommendations to control the spread of coronavirus (COVID-19) or prevent civil unrest, innocent people might get caught up in curfew enforcement efforts.

Curfews implement a variety of rights including the right to privacy, the right to the freedom of movement, the right to be free from unreasonable searches and seizures, and the right to remain silent.

Call 813-250-0500 to discuss your case.

Are Curfews Constitutional in Florida?

In State v. J.P., 907 So. 2d 1101 (2004), the Florida Supreme Court found juvenile curfew ordinances enacted in Tampa and Pinellas Park were UNCONSTITUTIONAL because they were not narrowly tailored and failed to survive strict scrutiny.

The curfews considered in State v. J.P., 907 So. 2d 1101 (2004), applied to young people who were under the age of 17 or 18 years old and took effect on weekdays from 11:00 p.m. to 6:00 a.m., and on Friday and Saturday nights from midnight to 6:00 a.m.

Many of the same issues raised in State v. J.P., 907 So. 2d 1101 (2004), could be raised if Hillsborough County and the City of Tampa enacts a curfew ordinance in response to the coronavirus (COVID-19) outbreak, especially if the ordinance contains criminal penalties as opposed to merely imposing fines.

What constitutional rights do curfews violate?

In State v. J.P., 907 So. 2d 1101 (2004), the Florida Supreme Court considered claims that the juvenile curfew ordinances violated the following rights:

1. The right of privacy to remain on public streets; and
2. The right to “freedom of movement.”

The Florida Supreme Court concluded that the Florida Constitution’s privacy provision “affords Florida citizens greater protection in the area of privacy than does the federal Constitution.” Id. at 26.

The court also held that the ordinances implicate the minors’ “constitutional right of freedom of movement.” Id. at 19. This right to the freedom of movement emanated both from the Privileges and Immunities Clause of the Fourteenth Amendment and on the Commerce Clause.

The court quoted a memorable passage from Wyche v. State, 619 So. 2d 231, 235 (Fla. 1993):

Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law.

All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.

The court declined to rule on the minors’ claims that the ordinances violate their parents’ rights to raise children, although the court noted that parents have a fundamental right in the upbringing of their children.

The juveniles also contend that the ordinances violate their Fourth Amendment right to be free from unreasonable searches and seizures and their Fifth Amendment right to remain silent.

In light of the Court’s conclusion that the ordinances did not pass strict scrutiny, it did not reach these Fourth and Fifth Amendment challenges to the curfew ordinances.

Why did the authorities in Florida want the curfew?

In State v. J.P., 907 So. 2d 1101 (2004), the State argued that the Tampa and Pinellas Park juvenile curfew ordinances sought to further the following interests:

1. the protection of juveniles, other citizens, and visitors from late night and early morning criminal activity;
2. the reduction of juvenile criminal activity; and
3. the enhancement and enforcement of parental control over children.

See Pinellas Park, Fla., Code § 16-124(B)(2) (1997); Tampa, Fla., Code § 14-26(a)(6) (1996).

According to Pinellas Park, Fla., Code § 16-124(B)(1)(h) (1997), “The likelihood of criminal activity by juveniles decreases as parental control increases. Legislative incentives to shift supervision of juveniles from government to parents . . . creates a more wholesome community environment for juveniles, parents, and families.”

What exceptions existed in the juvenile curfew ordinances?

The Pinellas Park curfew ordinance and the Tampa curfew ordinance contains a laundry list of exceptions including:

1. if they are accompanied by a parent or other responsible adult;
2. if they are married in accordance with law;
3. if they are commuting to or from lawful employment;
4. if they are engaged in interstate travel;
5. if they are on the sidewalk of their own home or an adult next-door neighbor’s residence with that neighbor’s permission;
6. if they are attending or returning from a school-sponsored function, religious function, or a civic organization function;
7. if they are engaged in an activity exercising their First Amendment rights such as religious services, government meetings, and political meetings; or
8. if they are at an event, not provided for in the enumerated exceptions, which the city council has approved pursuant to application by a sponsor.

Despite the many exceptions in the ordinances, the majority finds them not narrowly tailored enough because:

1. the broad coverage of both curfews includes otherwise innocent and legal conduct by minors even where they have the permission of their parents; and
2. the ordinances impose criminal penalties for curfew violations.

The Court also cited the ordinances’ imposition of criminal penalties as a reason for finding that they are not narrowly drawn when it found:

“[T]he imposition of criminal sanctions is not narrowly tailored to achieve the stated interests [of the curfew ordinance]” which is “possibly the most troubling aspect of our strict scrutiny review.”

Id. at 34. The court then concluded that the “criminal penalties indicate that the Tampa ordinance does not use the least intrusive means . . . especially when viewed against the model ordinance which accomplishes the same goal with only a civil penalty.” Id. at 35.

In other words, the ordinance could be enforced through a civil fine and that the civil penalty can accomplish the necessary deterrent function.

What are the problems with curfew ordinances imposing criminal penalties?

The Court noted that “most of the ordinances that have been upheld as constitutional only impose civil fines or community service requirements.” Id. at 35.

Under the Tampa ordinance, 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 up to six months and fined up to $1000.

Parents or business operators found in violation can be incarcerated for up to six months and fined up to $1000. See Tampa, Fla., Code §§ 1-6(a), 14- 26(h).

Under the Pinellas Park ordinance, juveniles are also subject to six months of supervision or commitment and parents to six months of incarceration for being in violation of the curfew. The Pinellas Park ordinance limits the fines to $500. See Pinellas Park, Fla., Code § 16-124(D)3, (F)2.

Section 877.22(3), Florida Statutes (2002), provides that a minor who violates the model curfew statute “shall receive a written warning for her or his first violation.”

A subsequent violation results in a civil infraction and the minor must pay a $50 fine for each violation. Section 877.23(3), Florida Statutes (2002), imposes the same civil infraction on a parent who knowingly permits a minor to violate section 877.22.

The Tampa ordinance is different from the Pinellas Park ordinance in the following respects:

• it did not apply to seventeen-year-olds;
• it provided an exception for nonemergency errands with the written approval of a parent;
• it provided an exception for homeless juveniles who use a public place as their usual abode;
• it imposed criminal liability on business owners or operators who knowingly permit a juvenile to remain on business premises during curfew hours; and
• it authorized a fine of up to $1000 and up to six months’ incarceration for a second or subsequent violation.

If any city or county in Florida enacted such a statute, you can expect attorneys to raise claims that the ordinance violated important constitutional rights. Keep in mind that these new curfews for coronavirus are NOT the same as the Governor in Florida declaring martial law.

Additional Resources

Hillsborough County Enacting Coronavirus Curfews – Read an article from the Tampa Bay Times explaining why Hillsborough County is expected to enact curfew and “safer-at-home” orders for the duration of the coronavirus or COVID-19 outbreak. The new rules take effect on Friday, March 27, 2020. For people in Hillsborough County, including Tampa, Temple Terrace and Plant City, a 10 p.m. to 5 a.m. curfew applies and request that non-essential businesses send employees home.

Stay at Home Order for Tampa, FL – Learn why a curfew would open the door for law enforcement officers to stop individuals breaking the mandate while the stay at home order would be more of a self-policing policy, bolstered by nonessential businesses shuttering and reducing the need for workers to physically go into work. A curfew is more restrictive because it might prohibit a worker from doing things like picking up food on their way home. Find information on why the Pinellas County Commissioners are still discussing a similar order in Pinellas County or the city of St. Petersburg.

What is Florida’s Curfew Law – Under Florida Statute Section 877.22, minors are prohibited from being in public places and establishments between the hours of 11:00 p.m. and 5:00 a.m. of the following day, Sunday through Thursday, except in the case of a legal holiday. A violation of the curfew might result in a written warning for a first violation or a fine of $50 for each subsequent violation.

This article was last updated on Tuesday, June 2, 2020.