Gardner v. Johnson, 82-995

Decision Date20 April 1983
Docket NumberNo. 82-995,82-995
Citation429 So.2d 1341
PartiesJames A. GARDNER, as State Attorney, Thomas Burton, as Sheriff of Manatee County, Florida and Jim Smith, as Attorney General of the State of Florida, Appellants, v. Richard JOHNSON, Appellee.
CourtFlorida District Court of Appeals

Jim Smith, Atty. Gen., Tallahassee and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellants.

David B. McEwen of McEwen & Gordon, Tampa, for appellee.

RYDER, Judge.

This is an appeal from the holding by the trial court that section 877.16, Florida Statutes (1979), is unconstitutionally vague and, therefore, void. 1 We agree and affirm.

Section 877.16, Florida Statutes (1979), states:

Exhibition of deformed animals prohibited; penalty--Whoever shall exhibit for pay or compensation any crippled or physically distorted, malformed, or disfigured beast, bird, or animal in any circus, show or similar place, or any other place to which an admission fee is charged, whoever knowingly causes to be advertised any such exhibition, and whoever solicits or procures the attendance of others at such exhibition with knowledge of the nature thereof, shall be guilty of a misdemeanor of the second degree, punishable as provided in section 775.082 or section 775.083.

Richard Johnson owns and operates an animal show with which he travels about the state exhibiting the animals at various county fairs and other events. Sometime in January 1978, Major Gill of the Manatee County Sheriff's Office received complaints that Johnson might be violating section 877.16. Gill relayed the complaints to the City of Palmetto Police Department. Soon thereafter, Palmetto City Chief of Police A.E. Hambacher contacted Johnson and Jim Murphy, the operator of a midway at the Manatee County Fair, and informed both men of the complaints. After listening to Chief Hambacher, Mr. Murphy indicated that the animal show would be closed. In turn, Murphy was advised that in view of the closure, no charges would be filed. The show was shut down.

During the ensuing nonjury trial, photographs of various animals from the show were introduced into evidence. Chief Hambacher was called as a witness and he testified that there were no written guidelines, standards or definitions to which he could refer in applying and interpreting the statute. In looking at the photographs, he indicated those animals which, in his estimation were within the meaning of the statute, those which were not within the statute, and those about which he was uncertain. Hambacher stated that as to some of the animals, he would seek advice from the state attorney's office before making an arrest of the exhibitor.

Major Gill was also called as a witness. He testified that in determining a violation of the statute, he would consider the animals from a "layman's point of view." Gill then looked at the photographs; his opinion differed from Hambacher's as to several of the animals.

Johnson testified that he earned a living and supported his family by exhibiting freak animals. He would advertise and charge for admission to the show. He stated he had exhibited the animals in Hillsborough and Escambia Counties without any difficulties; in Manatee and Leon Counties, however, his show was closed down. He testified that he had been unable to determine what criteria law enforcement officers used in determining whether there was a violation of the statute. Johnson also testified that some of the animals were normal for their breed. Since the show was closed down in 1978, Johnson has not been able to have his show booked in Florida by Murphy.

On April 29, 1980, Johnson filed a complaint for declaratory relief. The complaint, and its amendments, challenged the constitutionality of section 877.16, Florida Statutes (1979), and its predecessor, section 867.02, Florida Statutes (1977).

Subsequent to trial, the lower court declared section 877.16 unconstitutional and prohibited appellant from attempting to enforce the provisions of that statute against Johnson.

A penal statute must be strictly construed according to the specific words of that statute, and must be "construed in favor of the person against whom the penalty is sought to be imposed." State v. Llopis, 257 So.2d 17 (Fla.1971), quoted in State v. Dinsmore, 308 So.2d 32, 35 (Fla.1975). "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Id.

The two law enforcement witnesses who testified at trial described themselves as having,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT