State v. Cumming, 51925
| Decision Date | 22 November 1978 |
| Docket Number | No. 51925,51925 |
| Citation | 365 So.2d 153 |
| Parties | STATE of Florida, Appellant, v. Peter M. CUMMING, Appellee. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee
and T. Ed Austin, State's Atty. and Stephen R. White, Asst. State's Atty., Jacksonville, for appellant.
Kevin V. Canipelli of Schwartz & Bolinger, Jacksonville, for appellee.
This is a direct appeal from the County Court of Duval County, transferred here by the Circuit Court for that County. The trial judge passed directly on the constitutional validity of Section 372.922, Florida Statutes. Pursuant to Article V, Section 3(b)(1), Florida Constitution, we have jurisdiction.
Appellee was charged with unlawful possession of an ocelot. The possession, without a permit, of any wildlife (as defined in the regulations of the Florida Game and Fresh Water Fish Commission) is unlawful under Section 372.922, Florida Statutes. The wildlife is designated as Class I or Class II this appeal is concerned with Class II: "Wildlife considered to present a real or potential threat to human safety. . . ." The statute directs the Commission to further define Class II wildlife in its rules. Regulations to ensure that permits from the Commission are "granted only to persons qualified to possess and care properly for wildlife," and that wildlife possessed as personal pets "will be maintained in sanitary surroundings and appropriate neighborhoods" are to be promulgated by the Commission.
Rules 16E-5.051 and 5.052, Florida Administrative Code (Florida Game and Fresh Water Fish Commission), are the regulations promulgated by the Commission pursuant to the mandate of Section 372.922, Florida Statutes, for implementing the guidelines of the statute. Rule 16E-5.051 defines Class II wildlife, including ocelots, and lists their scientific or Latin name in parentheses. No unsafe or unsanitary conditions or confinement "in a manner which results in the maltreatment, mistreatment, or neglect of such wildlife" are permitted. Supervision and caution with the wildlife are required as well. Requirements for caging and restrictions on where the wildlife may be exercised are given in the rule. Rule 16E-5.052 leaves sanitation to be carried out in accordance with local, state and federal regulations. Specific caging materials and strength requirements are listed generally and for specific animals in each Class. No requirement that the animals be caged at all, however, is included.
Peter M. Cumming, after a denial of renewal of his permit, was cited by the Commission for possession of an ocelot, Class II wildlife, in an unsafe manner; namely, in an inappropriate neighborhood. He lived in an apartment at the time. One month later, Cumming was charged by information with possession of Class II wildlife without a permit, contrary to Section 372.922, Florida Statutes. He moved to dismiss the information because the statute and the rules implementing it are vague, indefinite, and overbroad. The trial judge, after taking expert testimony, dismissed the information and declared the statute and rules unconstitutional as applied. The state's appeal to the Circuit Court was transferred here on motion of appellee Cumming. Pursuant to our order temporarily relinquishing jurisdiction, the County Court clarified its reasons for invalidating the statute and rules. The cause is now here for resolution of the constitutional issues.
Appellee finds fault with the statute in that: the wording is too vague to enable one to ascertain what activity is proscribed, and the guidelines for the Commission's implementation of the statute are too vague and thus unlawfully delegate legislative authority. Appellee faults the rules for failing to provide standards for the granting or denial of permits or for determining what is an appropriate neighborhood. Appellee also charges that the rules fail to provide notice of the proscribed activity in that the use of the Latin name "Leopardus pardalis" to denote ocelots, when experts use the name "Felis pardalis" instead, leaves the rule vague and indefinite.
The state's argument that Section 372.922, Florida Statutes, enables persons of common intelligence to ascertain whether or not a contemplated act is lawful is supported by the language of the statute. The statute clearly prohibits possession without a permit from the Commission of "any wildlife as defined in this act." The statute, though lacking a specific definition of the term "wildlife," provides effective notice of what wildlife is contemplated as necessitating a permit by dividing that wildlife into the two Classes, and then directing that the regulations of the Commission shall further define the types of animals in the Classes.
The purchaser or owner of wildlife is put on notice that a permit will be required from the Commission if the possessed wildlife fits either the Class I or the Class II description and is defined in the regulations as the type of animal included under either Class. The owner is not left to hazard a guess as to whether his animal is unfit to be a personal pet because of its nature, habit, or status, or whether it presents a real or potential threat to human safety; instead, he is directed by the statute to the regulations of the Commission.
Rule 16E-5.051, Florida Administrative Code, specifically defines Class II wildlife as including ocelots. Though the rule includes the scientific or Latin name "Leopardus pardalis" in parentheses, it is clear that the general category of "ocelot" is what is sought to be regulated and is, thus, the controlling term. The owner of any of the specifically categorized animals is given a reasonable opportunity to know that a permit from the Commission is required for his animal.
Appellee's contention over which Latin name "Felis pardalis" is urged upon us by appellee as the only term that experts understand correctly denotes ocelots generally, misses the point of the statute. The possible existence of several subspecies of ocelot, due to crossbreeding, does not take those species out of the general category of "ocelot" and place them, for instance, in a "domestic cat" category. To allow such fine distinctions destroys the usefulness of any law of general applicability.
The Court takes note here that Cumming, in possession of an ocelot, apparently received adequate notice from the statute since ...
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