State v. Avatar Development Corp., 96-1639

• Decision Date: 16 July 1997
• Docket Number: No. 96-1639,96-1639
• Citation: 697 So.2d 561
• Parties: 22 Fla. L. Weekly D1740 STATE of Florida, Appellant, v. AVATAR DEVELOPMENT CORP. and Amikam Tanel, Appellees.
• Court: Florida District Court of Appeals

Page 561

697 So.2d 561

22 Fla. L. Weekly D1740

STATE of Florida, Appellant, v. AVATAR DEVELOPMENT CORP. and Amikam Tanel, Appellees.

No. 96-1639.

District Court of Appeal of Florida Fourth District.

July 16, 1997.

Rehearing Denied Aug. 19, 1997.

Robert A. Butterworth, Attorney General, and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for appellant.

John H. Pelzer, Samuel S. Fields and Daniella Friedman of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees.

David K. Thulman, Assistant General Counsel, State of Florida Department of Environmental Protection, Tallahassee, for Amicus Curiae-State of Florida Department of Environmental Protection.

PER CURIAM.

We have accepted jurisdiction pursuant to Rule 9.160, Florida Rules of Appellate Procedure, of the following certified question from the county court:

Are Florida Statutes § 403.161(1)(b) or § 403.161(5) unconsitutional as charged in the information?

Based on the certified question, the State of Florida appeals the dismissal of its criminal misdemeanor information against appellees Avatar Development Corp. ("Avatar") and Avatar's vice president, Amikam Tanel. We answer the certified question in the negative and we reverse the order dismissing the information.

The challenged statute subsections ¹ provide 403.161 Prohibitions, violation, penalty, intent.--

(1) It shall be a violation of this chapter, and it shall be prohibited for any person:

....

(b) ... to violate or fail to comply with any ... permit ... issued by the department pursuant to its lawful authority.

....

(5) Any person who willfully commits a violation specified in paragraph (1)(b) ... is guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense.

Fla. Stat. § 403.161 (1995).

On January 18, 1994, the Florida Department of Environmental Protection issued a permit authorizing Avatar to conduct dredge and fill operations in class III waters, for the purpose of stabilizing the banks of certain existing man-made canals tributary to the Intracoastal Waterway in Broward County and also authorizing it to lengthen an existing canal. The permit contained a number of conditions, including specific condition 3:

At least 48 hours prior to commencement of work authorized by this permit, the permittee shall notify the Department of Environmental Protection, Bureau of Wetland Resource Management in Tallahassee, and the Southeast District District [sic] office in West Palm Beach, in writing of this commencement.

It also included specific condition 5:

Prior to the commencement of any construction authorized by this permit, floating turbidity curtains with weighted skirts extending to the bottom of the man-made canals shall be properly installed around the shoreline stabilization areas and all areas to be dredged and filled, to isolate adjacent waters from the work area.... The floating turbidity curtains shall remain in place, be inspected daily and be maintained in good working order until all of the authorized work is complete, and turbidity levels in the project area are within 29 NTUs of background levels.

On November 28, 1995, the State charged Avatar and Tanel by information with two misdemeanors. Count I charged that appellees violated Section 403.161(1)(b) by willfully failing to provide written notice to the Department of Environmental Protection at least 48 hours before beginning the work authorized by the permit. Count II charged that appellees violated Section 403.161(1)(b) by willfully failing to employ turbidity curtains before beginning work authorized by the permit. Both counts also charge that these acts are first degree misdemeanors pursuant to Section 403.161(5), Florida Statutes.

The trial court dismissed the information, finding these statutory sections unconstitutional on three grounds: first, that they violate Article 1, Section 18 of the Florida Constitution; second, that they violate Article II, Section 3 of the Florida Constitution; and third, that they violate due process.

First, Article 1, Section 18 of the Florida Constitution provides:

No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.

The trial court relied on B.H. v. State, 645 So.2d 987 (Fla.1994), in concluding that to allow an administrative agency to seek to impose imprisonment, even through its police powers, violated this section of the Florida Constitution. B.H. recognized, however, that Article 1, Section 18 "speaks only to the quasi-adjudicatory powers of some administrative agencies, [and] embodies an overall constitutional policy that administrative agencies may not create a criminal statute or its equivalent and prescribe the penalty." Id. at 993.

In this case, the State Attorney filed the information in county court, and the complaining party is the State of Florida. The Department of Environmental Protection did not conduct an administrative hearing, nor has it imposed any penalty upon the appellees. Thus, the Department of Environmental Protection has exercised no quasi-adjudicatory powers with respect to Avatar or Tanel.

Second, Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

(Emphasis added).

The trial court also relied on B.H., 645 So.2d at 987, when it concluded that Sections 403.161(1)(b) and 403.161(5) were unconstitutional under Article II, Section 3. In B.H., the supreme court considered the validity of Section 39.061, Florida Statutes (Supp.1990). Id. Section 39.061 provided that an escape by a juvenile from a secure detention facility or a residential commitment facility of restrictiveness level VI(6) or above was a felony of the third degree. The statute also defined "restrictiveness level" as the identification of broad custody categories, to be established by the Department of Human and Rehabilitative Services ("HRS"). Id. The statute provided that these categories should include non-residential, residential and secure residential categories, and that there could not be more than eight levels. B.H. involved a question of whether the statutory enactment improperly delegated to HRS the legislative authority to determine what constitutes the crime of juvenile escape. In concluding that the statute did improperly delegate legislative authority to an administrative agency, the supreme court said:

This Court has stated repeatedly and without exception that Florida's Constitution absolutely requires a "strict" separation of powers.

Id. at 991 (emphasis added).

The term "legislative power" as used in Article III most particularly embraces statutes defining criminal offenses; and in the field of criminal law, the concept of separation of powers is directly linked to the Constitutional guarantee of due process. Thus we have held that "criminal statutes must be strictly construed according to their letter and ... this rule emanates from article I, section 9 and article II, section 3 of the Florida Constitution." Jeffries v. State, 610 So.2d 440, 441 (Fla.1992). The nondelegation doctrine arising from article II, section 3 is directly at issue because "the power to create crimes and punishments in derogation of the common law inheres solely in the democratic process of the legislative branch." Perkins v. State, 576 So.2d 1310, 1312, (Fla.1991) (emphasis added). Likewise, due process is implicated because article I, section 9 requires that a criminal statute reasonably apprise persons of those acts that are prohibited; and the failure to do so constitutes a due process violation. Jeffries; Perkins.

Id. at 992.

In Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919), cited by appellant, a statute created the live stock sanitary board and authorized it to take such measures as were necessary or proper for the control and prevention of communicable diseases which infect domestic animals. The statute also provided that anyone who knowingly and willfully violated any rule or regulation of the board was guilty of a misdemeanor, punishable by fine or one year's imprisonment or both. A defendant charged with a misdemeanor under this statute sought habeas corpus on the grounds that it improperly delegated legislative authority to an administrative agency. The supreme court upheld the statute:

In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers, it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.

The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. This principle of the law is peculiarly applicable to regulations under the police power, since the complex and everchanging conditions that attend and affect such matters make it impracticable for the Legislature to prescribe all necessary rules and regulations.

Authority to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations, is not an...