County Criminal Court:  CONSTITUTIONAL LAW---homeless persons are not a “suspect class” and seeking a place to sleep at night within a public park is a not a “fundamental right” protected by the U.S. Const.  Rational basis test was the correct standard to determine constitutionality of city ordinance that prohibited entering or remaining in a city park during certain hours of the day.  Order affirmed.  Lockett v. State, No. CRC 07-00075APANO (Fla. 6th Cir. App. Ct. August 21, 2008)















v.                                                                                                                                           Appeal No. CRC 07-00075APANO

UCN 522006MO034499XXXXNO







Opinion filed _____________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer


Bruce G. Howie, Esquire

Attorney for Appellant


John C. Wolfe, Esquire

Jeanne Hoffman, Esquire

Attorneys for Appellee





            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Gregory A. Lockett’s appeal from an order denying Appellant’s Motion to Dismiss.  After review of the record and the briefs, this Court affirms the denial of the Motion to Dismiss.


Factual Background and Trial Court Proceedings

            On November 24, 2006, the Appellant, Gregory A. Lockett, was issued a Notice to Appear for a violation of the City Code 21-40 of the City of St. Petersburg, after entering into Williams Park and refusing to leave despite being asked by law enforcement.  Appellant’s counsel filed a Motion to Dismiss the charge for violating the ordinance.  Appellant asserted that the ordinance was unenforceable and unconstitutional as a matter of law.  After hearing, the trial court entered its’ written order denying the Motion to Dismiss.  The Appellant entered a plea of Nolo Contendere to the ordinance violation of trespassing in a city park and the trial court entered its’ order withholding an adjudication of guilty and disposing of the case.  A Notice of Appeal was timely filed. 

Standard of Appellate Review

Rulings on the constitutionality of an ordinance are subject to de novo review.  State v. J.P., 907 So2d 1101, 1107 (Fla. 2004).  Such rulings present pure issues of law.  The appellate court is not required to defer to the judgment of the trial court.”  Lowe v. Broward County, 766 So2d 1199, 1203 (Fla. 4th DCA 2000); State, Dep't of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 601 (Fla. 1st DCA 1999), rev. denied, No. SC96906, 770 So.2d 158 (Fla. July 24, 2000).

The Issue


Appellant, in his brief, argues that the trial court erred in applying the “rational basis test” to decide if St. Petersburg City Ordinance 21-40(1)(a) is constitutional.  Specifically Appellant maintains, “(f)or a homeless person, seeking a place to sleep within a public park is a fundamental right, the violation of which is prohibited by the Eighth Amendment”.  Appellant concludes that because a fundamental right was violated the ordinance should have been subjected to strict scrutiny in the trial court’s ruling on the motion to dismiss.  The difficulty with this argument is that there is inadequate legal authority to support Appellant’s assertion that a “fundamental right” was involved in the present controversy. 

Testing the Constitutionality of an Ordinance

1.                  Generally.  When a statute or ordinance operates to the disadvantage of a suspect class or impairs the exercise of a fundamental right, then the law must pass “strict scrutiny”. J.P., 907 So2d at 1109.  Strict scrutiny requires the City to demonstrate that the challenged regulation serves a compelling interest of the city and accomplishes its goal through the use of the least intrusive means. J.P., 907 So2d at 1110; see Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985).  On the other hand, if an ordinance does not infringe upon a fundamental right or target a protected class, equal protection claims relating to it are judged under the rational basis test; specifically, the ordinance must be rationally related to the achievement of a legitimate government purpose. Joel, 232 F.3d at 1357; see Bannum, Inc., v. City of Fort Lauderdale, 157 F.3d 819, 822 (11th Cir.1998).

2.         Fundamental Rights.    A fundamental right is one which has its source in and is explicitly guaranteed by the federal or Florida Constitution.  J.P., 907 So2d at 1109.  Sleeping out-of-doors is not fundamental right.  Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000).  The Joel court stated:

Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental right. See D'Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir.1995) (homeless not a suspect class); Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1269 n. 36 (3rd Cir.1992) (same); Davison v. City of Tucson, 924 F.Supp. 989, 993 (D.Ariz.1996) (same); Johnson v. City of Dallas, 860 F.Supp. 344, 355 (N.D.Tex.1994) (same), rev'd on other grounds, 61 F.3d 442 (5th Cir.1995); Joyce v. City and County of San Francisco, 846 F.Supp. 843, 859 (N.D.Cal.1994) (declining to be the first court to recognize fundamental right to sleep), dismissed, 87 F.3d 1320 (9th Cir.1996); State of Hawaii v. Sturch, 82 Hawai'i 269, 921 P.2d 1170, 1176 (App.1996) (noting that there is “no authority supporting a specific constitutional right to sleep in a public place” unless it is expressive conduct within the ambit of the First Amendment or is protected by other fundamental rights). But see Pottinger v. City of Miami, 810 F.Supp. 1551, 1578 (S.D.Fla.1992) (indicating in dicta that homeless might constitute a suspect class), remanded for limited purposes, 40 F.3d 1155 (11th Cir.1994), and directed to undertake  settlement discussions, 76 F.3d 1154 (1996). Consequently, rational basis review is appropriate. 


Joel, 232 F.3d at 1357.  The act of sleeping in a public place, absent expressive content, is not constitutionally-protected conduct.  Whiting v. Town of Westerly, 942 F.2d 18, 21 (1st Cir. 1991).  The government may constitutionally prohibit overnight sleeping in public areas as an exercise of its police power. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. at 3065 (1984).  This Court is aware of no legal authority that establishes the singular act of nighttime sleeping in a public park as a fundamental right.

The Present Case

St. Petersburg City Ordinance 21-40(1)(a) prohibits persons from entering or remaining in a city park from 11:00 p.m. until 30 minutes before sunrise.  A “fundamental right” was not impacted by this ordinance in the present controversy.  Secondly, as a matter of constitutional law, homeless persons are not a suspect class.  Therefore, in the present case, the trial court correctly determined that the rational basis test was appropriate.  This Court approves and incorporates herein the following portion of the trial court’s order explaining the application of the rational basis test to the present case: 

The first step in determining whether the statute survives rational basis scrutiny is to determine whether there is a legitimate government purpose served by the enactment of the statute.  Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995).  In making that determination, it is only necessary to determine what purpose the enacting body could have been pursuing, not necessarily what purpose was proved that the government was pursuing.  Id.  In this case, the State actually presented evidence in the form of sworn testimony as to the legitimate government purpose in the enactment of St. Petersburg City Code section 21-40(a).  Those purposes are ensuring public safety and health, performing park maintenance, preventing destruction of park property, and ensuring the peace of surrounding neighboring citizens.  Accordingly, this court finds a legitimate governmental purpose in the enactment of St. Petersburg City Code section 21-40(a), and the first step is satisfied.


The second step in determining whether the statue survives rational basis scrutiny is to determine whether a rational basis exists for the enacting body to believe that the legislation would further the hypothesized purpose.  “The proper inquiry is concerned with the existence of a conceivably rational basis, not whether the basis was actually considered by the enacting body.”  Id.  Certainly a rational basis exists for believing that keeping public parks closed during late night and early morning hours would further the purposes set forth above.  Accordingly, St. Petersburg City Code section 21-40(a) survives rational basis review.


The Defendants also argue that the ordinance violates Equal Protection because of arbitrary enforcement, and ostensibly, that the ordinance is disproportionately enforced against the homeless.  In support of this contention, the Defendants presented sworn testimony that two of the Defendants, who were not homeless, have violated this ordinance for many years at parks other than Williams Park, without repercussion.  Further, they testified that when they purposefully violated the ordinance in question as part of a homeless demonstration (along with a third co-defendant who was actually homeless), they were cited with violating the statute.


However, in order to find the ordinance violative of the Due Process clause, a discriminatory purpose in enacting the ordinance must be proved.  State v. Joel, 232 F.3d 1353 (11th Cir. 2000).  In Joel, the Defendants presented evidence that at least 98 percent of those prosecuted under the challenged ordinance in that case were homeless.  The court held that it was not enough to show that the ordinance had a “disproportionate effect” on the homeless, and that a discriminatory purpose had not been proven.  Joel at 1359.  In this case, the Defendants presented far less evidence of disproportionate enforcement against the homeless, and a discriminatory purpose was likewise not proven.


Therefore, This Court finds that St. Petersburg City Code section 21-40(a) does not violate the Equal Protection Clause of the United States Constitution.



In summary, as a matter of constitutional law, homeless persons are not a suspect class and the involved ordinance did not impair the exercise of a fundamental right by the Appellant.  The trial court correctly applied the “rational basis test” to decide if St. Petersburg City Ordinance 21-40(1)(a) was constitutional.  Accordingly, the trial court’s order denying Appellant’s Motion to Dismiss must be affirmed.  

IT IS THEREFORE ORDERED that the order denying Appellant’s Motion to Dismiss is affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of August, 2008.




Michael F. Andrews                                                 Circuit Court Judge





Raymond O. Gross

Circuit Court Judge





                                                                        R. Timothy Peters

                                                                        Circuit Court Judge






Copies furnished to:


Honorable  Robert Dittmer

Bruce G. Howie, Esquire

John C. Wolfe, Esquire

Jeanne Hoffman, Esquire