BUSINESS LAW 101 / Loitering

By Albert L. Kelley, Esq.

In 1953, Marlon Brando starred in one of the first and best biker movies, The Wild One.  This film did the most to create the biker image that still exists today.  One of the images is of bikers loitering around street corners or in front of diners.  This wasn’t a new concept in films.  Westerns had long featured cowboys loitering on the porches of old west buildings waiting for a shootout to occur.

In Florida, loitering is generally not allowed.  But first, what exactly is loitering? The legal definition is to “linger or hang around in a public place or business where one has no particular or legal purpose”. Under Florida Statute 856.021, “it is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” Now, this does not mean that everyone hanging out on a street corner or in a public place is committing a crime, even if their being there frightens certain people.  The Courts have held that “Loitering or prowling under section 856.021(1) has “two elements: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) such loitering or prowling was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. Both elements must occur in the officer’s presence and be complete before the officer takes action. . . A “vaguely suspicious presence” is insufficient to establish the first element of the crime. This court has stated that “[b]efore the stop is ordered, that officer must observe conduct that creates the requisite alarm in the officer’s mind.”  Fields v. State, 292 So.3d 889 (Fla. App. 2020).

Once the officer has observed behavior that creates suspicion, then the law puts additional obligations on the officer. Before arresting someone for loitering, a law enforcement officer shall afford the person an opportunity to dispel the suspicion by requesting the person to identify themself and explain their presence and conduct.  This opportunity to explain themselves must be given.   If the officer fails to do this, the person cannot be convicted of loitering.  And if the person gives the officer a reason or excuse and at trial it is deemed that the excuse is true and should have dispelled the officer’s concern, the person cannot be convicted.  

There is an exception to the opportunity to explain themselves.  If the person runs from the officer, fails to identify themselves or tries to conceal themselves, then the officer is excused from given them the chance to explain their behavior. Officers are allowed to arrest people for loitering without a warrant if obtaining the warrant would allow the person to escape.

The opportunity to explain also creates what some see as a constitutional question. Because the Fifth Amendment to the U.S. Constitution gives people the right not to incriminate themselves, nobody can be forced to explain their actions.  When the loitering law was passed in 1975, it was quickly challenged as unconstitutional. The Florida Supreme Court upheld the law, stating that the opportunity was merely an additional defense.  It is an opportunity to make a voluntary statement that can prevent a charge from being raised. 

Normally, loitering is a second-degree misdemeanor. However, if the person being charged is a registered sex offender and they are loitering where children would be expected to congregate such as a park, playground or school, the charge increases to a first-degree misdemeanor, unless they provide written notification of their intent to be present to the school board, superintendent, principal, or child care facility owner; notify the child care facility owner or the school principal’s office when he or she arrives and departs the child care facility or school; or remains under direct supervision of a school official or designated chaperone when present in the vicinity of children.  It is also not a violation if they are present at the site for the purposes of voting or when dropping off or picking up his or her own children or grandchildren at the child care facility or school.

Al Kelley has worked as an attorney in Monroe County for the last 32 years. He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a legal YouTube channel. He serves as the Vice Chair of the 16th Judicial Circuit Professionalism Panel.  He also previously taught business law, personnel law, and labor law at St. Leo University. This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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