Graham v. Wolmer
| Decision Date | 15 April 1987 |
| Docket Number | No. 4-86-1566,4-86-1566 |
| Citation | 12 Fla. L. Weekly 1041,505 So.2d 637 |
| Parties | 12 Fla. L. Weekly 1041 Bob GRAHAM, Governor of the State of Florida; George Firestone, Secretary of State; Jim Smith, Attorney General; Gerald A. Lewis, Comptroller; Bill Gunter, Treasurer; Doyle Conner, Commissioner of Agriculture; Ralph D. Turlington, Commissioner of Education, as and constituting the State of Florida Board of Natural Resources; Elton J. Gissendanner, Executive Director, State of Florida, Department of Natural Resources; and Edwin Joyce, Director, Division of Marine Resources, State of Florida Department of Natural Resources, and the Florida Game Commission, Appellants, v. John A. WOLMER, John C. Noyes and Richard Van Munster, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Jr., Atty. Gen., and Joseph Lewis, Jr., Asst. Atty. Gen., Tallahassee, for appellants.
No brief filed on behalf of appellees.
On May 25, 1978, John A. Wolmer filed a complaint, challenging the constitutionality of chapter 25714, Laws of Florida (1949), which regulates salt water fishing in Broward County, and seeking declaration that section 370.08(1) Florida Statutes (1977), which makes it unlawful to possess a net in any county where its use is prohibited, is unconstitutional. John C. Noyes and Richard Van Munster were allowed to intervene as plaintiffs. Because the assigned trial judge never entered a final order for five years after verbalizing on the record several thoughts, the chief judge was apparently required to assume responsibility for doing so. The plaintiffs assumably have lost interest herein, for they have filed no brief. The facts of this case will be phrased in the present tense, as they existed at the time of the original hearing, though we realize some of them may have changed since the time this case was heard by the trial court.
Plaintiff/appellee, John Wolmer, is a resident of and does business in Broward County, Florida as a commercial net fisherman and as owner and operator of Broward Bait Supply, Fort Lauderdale, Florida. Wolmer fishes for ballyhoo. Plaintiff/appellee, Richard Van Munster, resides in West Palm Beach, Florida and does business as a commercial net fisherman fishing for bait fish in the salt waters of the State of Florida, which he sells to Broward Bait Supply in Fort Lauderdale, Florida. Plaintiff/appellee, John Noyes, is a marine life fisherman who sells varied species of fish to the aquarium and research markets.
Plaintiffs/appellees alleged in their amended complaint that chapter 25714, Laws of Florida (1949), is overly broad, has no redeeming protective quality for protection of the resource, and is, therefore, an unreasonable regulation of their right to fish for ballyhoo in salt waters of the State of Florida.
The final judgment recites:
1. Chapter 25714, Laws of Florida (1949), serves the public purpose in promotion of the welfare of the people by encouraging a broader distribution of the fish resource, and promotion of tourism. In addition, the decision of the legislature to prohibit the use of fishnets in the saltwaters of Broward County is not clearly erroneous, arbitrary, or wholly unwarranted. Chapter 25714 is therefore a constitutional enactment by the legislature of this state.
2. The temporary injunction of the enforcement of Chapter 25714 only as to Plaintiff John C. Noyes for his use of barrier nets to catch reef dwelling fish for public display and for scientific studies is made permanent.
3. Section 370.08(1), Florida Statutes (1979), is unconstitutional as applied to Plaintiffs, John A. Wolmer, Richard Van Munster and John C. Noyes, to the extent enforcement of the statute is predicated solely upon mere possession, without more, of a fish net within the territorial limits of Broward County, Florida. Therefore, the temporary injunction against enforcement of Section 370.08(1), Florida Statutes (1979), is made permanent as to all the Plaintiffs and the Defendants are directed to desist from any enforcement activities which is predicated solely upon mere possession, without more, of a net within the territorial limits of Broward County, Florida.
The first issue is whether the trial court erred in entering a permanent injunction against the enforcement of chapter 25714, as to plaintiff/appellee Noyes. We conclude it did.
In Cone v. King, 196 So. 697, 698-99 (Fla.1940), the Florida Supreme Court stated:
Courts are not authorized to enjoin the operation of a statute which has been duly adjudged to be constitutional and operative,...
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