Mosley v. State , 504 So. 2d 40 ( 1987 )

PER CURIAM.

The petitioners seek writs of certiorari from the circuit court’s reversal of a county court order dismissing misdemeanor charges against petitioners with respect to alcoholic beverages on the streets of Avon Park. Petitioners were purportedly charged under City of Avon Park ordinance number 748 which reads, in pertinent part:

It shall be unlawful for any person to consume any alcoholic beverage including beer on any semi-public parking lot, public street, or public right of way or thoroughfare within the City of Avon Park. Having any open container of alcoholic beverages in such locations shall be prima facie proof of consumption thereon in violation of this section.

The county court found the second sentence of the ordinance unconstitutional and dismissed the charges. The circuit court on appeal, while recognizing that “the Information does not charge defendant[s] with a crime and, thus, the constitutionality of the Ordinance, or any part thereof, may not have been properly before the trial judge,” nonetheless found the ordinance constitutional and reversed.

Since each petitioner was charged only with having “in his possession an open container of alcoholic beverage, to wit: a can containing beer on a public street, public right-of-way or semi-public parking lot or thoroughfare,” neither was charged with the misdemeanor defined in the ordinance, namely, consuming alcoholic beverages in certain locations. Since neither petitioner was charged with a crime we grant the petitions, quash the action of the circuit court, and affirm the dismissal of the charges against petitioners.

DANAHY, C.J., and RYDER and LEHAN, JJ., concur.