Alcohol, Tobacco, and Truancy Parental Criminal Liability

Laura Bosco - Office of the State Attorney - Eighteenth Judicial Court

Parents and guardians of children, who are defines as those who are less than 18 years of age, have numerous responsibilities placed on them under Florida Statutes. Some of these responsibilities are placed on them when a child is prosecuted for a law violation in Juvenile Court under Florida Statutes, Chapter 985. Parents and guardians must attend all court hearings with their child and can be ordered to pay for detention fees, commitment fees, attorney fees, and restitution if their child is prosecuted in Juvenile court. A parent or guardian may also be ordered to participate in community service and counseling under Chapter 985. Parents and guardians are also subjected to criminal liability in some cases if they permit or assist their child in violating alcohol, tobacco, or school attendance laws.

Alcohol

The Seminole County Sheriff's Office in cooperation and partnership with all Seminole County law enforcement agencies, including the Altamonte Springs Police Department, the Casselberry Police Department, the Lake Mary Police Department, the Sanford Police Department, and the Winter Springs Department, are enforcing a policy of "Zero Tolerance" when children are in possession of alcoholic beverages. What this means is that when a law enforcement officer has contact with a child who is in possession of any type of alcoholic beverage under any circumstance, the child will be taken into custody, charged with a violation of law, and brought to the Juvenile Assessment Center for booking and risk assessment. There are no exceptions.

The Florida Statutes Section 562.11 makes it unlawful for any person under the age of 21 to possess alcohol. There is only one exception. The exception is for persons who are employed by an establishment that serves alcohol. Those persons may possess alcohol if they are 18 years of age or older and the possession is during the course of their employment. Many of those establishments cannot by law even employ children. A child may not possess alcohol under any circumstances.

It is against the law for anyone under the age of 21 to possess alcohol in their home or while on their own property or with their parent's permission. Contrary to what seems to be a popular belief, there are no other exceptions.

If a person less than 18 years is charged with the criminal offense of Possession of Alcohol by the Person Less Than 21 Years of Age, the child could be punished by the Juvenile Court with a disposition (sentence) of 60 days in a commitment program (the juvenile equivalent of jail) or placement on community control (probation) for six months. If the child is convicted of a second or subsequent violation, the penalty increases to one year of commitment or community control.

In addition to these penalties, the Juvenile Court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of or suspend the driver's license of any child found guilty of this offense. For a first violation the time period for withholding or suspending the driver's license shall be for at least six months but not more than one year. For a second violation the time period shall be for up to two years.

The Department of Highway Safety and Motor Vehicles can also suspend a child's driver's license without the direction of a court. Florida Statutes, Section 322.2616 gives the Department the authority to suspend the driving privilege of any person under the age of 21 who is found by a law enforcement officer to be operating a motor vehicle with a blood-alcohol level of .02 percent or higher. This is a lesser blood-alcohol level than required for charge of Driving under the influence, which requires a blood-alcohol of .08 or higher. That charge is criminal offense. Driving with a blood-alcohol of .02 or by a person less than 21 is not a crime. It is an administrative procedure and a violation of a driving restriction. The time period for the suspension is six months for the first violation and one year for the second. An administrative process through the Department of Highway Safety and Motor Vehicles accomplishes this. Law enforcement is authorized by the law to suspend the driver's license immediately on behalf of the Department.

A parent or guardian may not give a child alcohol, even at home. If they do they will be subjected to prosecution under Florida Statutes, Section 562.11. That Section makes it unlawful for any person to sell, give, serve, or permit to be served alcohol to any person under the age of 21. It does not make an exception for parents or guardians. If a parent or guardian provides alcohol to a child, the parent or guardian could be subjected to prosecution under Florida Statutes, Section 562.11 for the misdemeanor offense of Selling, Giving, or Serving alcoholic Beverages to a Person Under Age 21, punishable by up to 60 days in jail and $500.00 fine, and/or under Section 827.04 for the misdemeanor offense of contributing to the delinquency of a child, punishable by up to one year in jail and $1000.00 fine.

During the high school graduation season, often times parents will rent a room in a hotel or motel or let children use their home for parties. The parents reason that they know that the children will drink alcohol no matter what they do, so they might as well provide a place for the children to party so that the parents know where they are and that they are not out driving. While their intentions are good, there is a law, which prohibits it. Florida Statutes, Section 856.015 makes it unlawful for an adult (defines as a person not legally prohibited from processing alcohol, i.e., anyone 21 years of age or older) who has control of a residence (defined as a home, apartment, condominium, or other dwelling unit) to allow an open house party (defines as a social gathering at a residence) if any alcohol or drug is possessed or consumed by a minor (defined as legally prohibited from possessing alcohol, i.e., less than 21 years of age), where the adult knows that alcohol or drugs are being possessed or consumed by a minor and fails to take reasonable steps to prevent the possession or consumption. It is a misdemeanor of the second degree to violate this law. This means that a person found guilt of the charge could be jailed for up to six months and fined up to $500.00.

Tobacco

Seminole County law enforcement agencies are also aggressively enforcing Florida Statutes, Section 569.11. This statute makes it unlawful for any person under the age of eighteen to knowingly possess any tobacco product. A person under the age of eighteen under this section of Florida Statutes does not include a person who is married, nor a person who is in the military reverse or on active duty in the Armed Forces, nor a person who has been emancipated by a court, nor a person who is acting in the scope of his or her employment, nor a person who is working with a law enforcement agency to test the compliance of tobacco vendors with the provisions of Chapter 569, Florida Statutes. A tobacco product includes loose tobacco, products made with tobacco leaves, and cigarette wrappers, which can be used for smoking, sniffing, or chewing tobacco. Section 569.11 is a non-criminal law violation and the County court has jurisdiction over the offense. It is not prosecuted in a court, which deals only with juvenile offenders. Therefore, the records are not confidential. Those who violate this law may be punished for a first violation by 16 hours of community service or a $25.00 fine. They also must attend a school-approved anti-tobacco program. A second violation within 12 weeks of the first is punishable by a $25.00 fine. And a third location within 12 weeks of the first violation requires that the court must direct the Department of Highway Safety and Motor Vehicles to withhold issuance of a suspend the person's drivers license for 60 days. Any second or subsequent violation not within 12 weeks after the first is punishable as a first violation. If the person fails to complete the community work hours, fails to pay the fine, or fails to attend the anti-tobacco program, the court shall direct the Department of Highway Safety and Motor Vehicles withhold issuance of or suspend the person's driver's license for 30 days for a first violation and 45 days for a second violation if it occurs within 12 weeks of the first violation. Any second violation not within 12 weeks of the first shall be treated as a first violation.

Florida Statutes, Section 569.101 states that it is unlawful for any person to sell, deliver, barter, furnish, or give, directly or indirectly, to any person who is under 18 any tobacco product. It is a criminal law violation to commit this crime. Any adult who violates this Section may be punished by up to 60 days in jail and a $500.00 fine. If the law is violated again by the adult within one year of the first violation, the punishment increases to up to one year in jail and $100.00 fine. If a juvenile violates the law, the maximum sentence in juvenile court for a first offense could be 60 days in a commitment program or six months on community control. A juvenile charged with a second violation within one year of the first could be sent to a commitment program or placed on community control for up to one year. This law also does not provide any exception that a parent or guardian may provide tobacco products to a person under 18. If the parent or guardian provides a tobacco product to a person under 18, the parent or guardian would be subject to prosecution, as would anyone else who provide a tobacco product to a person under 18.

Truancy

It is the law in the State of Florida that all persons under the age of 18 attend school until they graduate or until their eighteenth birthday. Many people believe that a child is only required to attend school until their sixteenth birthday. This is incorrect. Florida Statutes, Section 232.01 requires school attendance until the child is eighteen years old. To withdraw from school at 16 or 17, the child must follow the procedures established by the local school board.

Chapter 984 of the Florida Statutes, in conjunction with Chapter 232 sets out the procedures, which must be followed to bring a child who is habitually truant before the court. A "habitual truant" is defines in Section 984.03(29) as a child who is subject to compulsory school attendance and who has 15 unexcused absences within 90 days with or without the knowledge or consent of the parents or legal guardians. The school may take action to remedy the problem before the child has missed this many days. The school may provide intervention after three unexcused absences.

If a child is truant, the local school board is required to notify the Department of Highway Safety and Motor Vehicles, and the Department has the authority under Florida Statutes, Section 322.09 to not issue a driver's license or to suspend the driver's license of the child who is not attending school.

Under Chapters 232 and 984, the school will provide interventions as necessary to attempt to remedy the truancy. If those interventions fail, or if the child or parent or the guardian do not cooperate with the school's efforts to remedy the problem, the school and the Department of Juvenile Justice may investigate the problem. After a joint meeting, the school and the Department of Juvenile Justice may recommend services to the child and family to remedy the conditions that are contributing to the truant behavior or refer them to appropriate community agencies for economic services or counseling. The failure or refusal of a parent or legal guardian or child to participate or make a good effort to participate in the services or the failure of the child to stop the truant behavior after services have been offered, will result in the child and parent or legal guardian being summoned to appear in the Juvenile Court on a Petition for a child in Need of Services under Chapter 984, Florida Statutes.

A child in Need of Services (CINS) means a child who has persistently runaway from the child's parent or legal guardian, is habitually truant from school, or has persistently disobeyed the reasonable and lawful demands of the child's parents or legal guardians. When a CINS Petition is filed before the Juvenile court and the child is found by the Court to be in need of services, the child and the parents or legal guardians are subject to the jurisdiction of the Juvenile Court and can be ordered to comply with the requirements of the Court to remedy the truant behavior, including requiring the parent or guardian to attend school with the child or to attend parenting classes. This may also include ordering the parent, guardian or custodian and the child to participate in counseling or to pay a fine or fee or to participate in community service. The child may be placed under the supervision of the Department of Juvenile Justice or another agency, may be placed in the temporary legal custody of an adult willing to care for the child, or may be committed to the custody of a licensed agency willing to receive the child. If the child is placed outside of the custody of the parent or legal guardian, the Court shall order the child to attend school daily, with no unexcused absences, tardies, or behavior referrals.

If the child, parents or legal guardians fail to follow the Court's order, the Court may bring the violator before the Court for a Contempt of Court proceeding. If the child is found to be in contempt, the Court may order the child to be placed in a secure facility for five days for a first offense and fifteen days for a second or subsequent offense, if there are no alternative sanctions available, or if the child has already been ordered to complete an alternative sanction but failed to comply. The Court may also direct the Department of Highway Safety and Motor Vehicles to withhold insurance of or suspend the child's driver's license for up to one year for a first offense and for up to two years for a second or subsequent offense. If the parents or legal guardians fail to comply with the orders of the Court, the Court could initiate a Contempt of Court proceeding. The parents or legal guardians could be punished by up to 179 days in jail for contempt of court.

In addition, parents and legal guardians may be prosecuted in a criminal court if their child fails to attend school. Florida Statutes, Section 232.19 states that a parent or guardian who refuses or fails to have their child attend school regularly, or who refuses or fails to comply the interventions offered by the school of the Department of Juvenile Justice. A parent or guardian who violates this provision may be punished by up to six months in jail and a $500 fine.

Driving Restrictions; hours of operation

There are restrictions on a child's driver's license limiting what hours a child may operate a motor vehicle. Florida Statutes, Section 322.16 makes it unlawful for a person less than 17 to operate a motor vehicle between the hours of 11:00 p.m. and 6:00 a.m. unless he or she is accompanies by a licensed driver 21 years or older, unless he or she is driving directly to or from work. A person who is 17 may not drive between the hours of 1:00 am and 5:00 am unless accompanied by a licensed driver 21 years old or older, unless driving to or from work. If a child violates this driving restriction, the Department of Highway Safety and Motor Vehicles may suspend their driver's license and the child will face prosecution in County Court.

The sanctions may seem severe, but it is the intent of the Florida Legislature to hold parents responsible for their children. Parents and guardians should not be permitted to allow their children to consume alcohol or tobacco products. The Legislature has found that truancy has a direct relationship to juvenile delinquency. A parent or guardian must cooperate with their local school in insuring that their child attends everyday as required by law. It is the intent of the legislature that parents and guardians ultimately should bear the burden of raising their children to productive citizens. Seminole County law enforcement agencies will not tolerate violations of law, which may jeopardize the safety, and well-being of our children and our community. They will continue to enforce the strong policy of "Zero Tolerance". And the Office of the State Attorney, Eighteenth Judicial Circuit, will vigorously pursue prosecution.