State v. Leavins
| Decision Date | 11 May 1992 |
| Docket Number | Nos. 90-2177,90-2359,90-2364,s. 90-2177 |
| Parties | 17 Fla. L. Weekly D1203 STATE of Florida; Florida Department of Natural Resources; and Florida Department of Revenue, Appellants, v. H.G. LEAVINS, Jr., and Alice C. Leavins; Donnie Wilson; James T. McNeill; and Olan B. Ward, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Joseph C. Mellichamp, III, Sr. Asst. Atty. Gen., Eric J. Taylor and Joseph Lewis, Jr., Asst. Attys. Gen., for appellant Dept. of Revenue.
Kenneth J. Plante, Gen. Counsel, C. Lynne Chapman, Asst. Gen. Counsel, Kelly Brewton, Asst. Gen. Counsel, Dept. of Natural Resources, for appellant Dept. of Natural Resources.
Frank J. Santry and George G. Rasky of Granger, Santry, Mitchell & Heath, Tallahassee, for appellees.
Appellants, in these three consolidated cases, challenge an order of the trial court which finds unconstitutional Chapter 89-432 and Chapter 89-175, Laws of Florida.
Appellees are holders of perpetual oyster harvesting leases pertaining to submerged lands in the Apalachicola Bay area. The leases provide that they are subject to the terms, conditions, reservations and restrictions in either Chapter 16178, Acts of 1933, Laws of Florida, or section 370.16, Florida Statutes (1953), 1 depending on the particular lease. The trial court found as a matter of fact, and we agree, that the leases, when construed with the statutory provisions incorporated by reference, have the following terms:
a. Their duration is perpetual.
b. Annual rent must be paid.
c. Cultivation must be provided so that at the end of 5 years (10 years for leases 547 and 551) there have been planted 200 barrels of cultch 2 per acre.
d. All oysters shall be culled as taken from the lease area.
e. All oysters smaller than 3"' and all bedding shells shall be immediately replaced upon the area from which they were taken.
f. All half shells shall be returned from the place taken within 24 hours after removal.
g. The lease area must be marked by stakes or buoys on the boundaries.
h. Oysters produced on the lease must be marketed exclusively through premises of an oyster house holding a certificate of approval from the Florida State Board of Health [now HRS].
i. After the lease is issued, the lessee shall enjoy the exclusive use of the leased land.
j. All oysters and clams, shell and cultch grown or placed on the lease shall be the exclusive property of the lessee.
k. No taxes, assessments, or other licenses than those imposed by then-Ch. 370.16 (1953 or earlier) shall be levied or imposed on the lease or leased land.
l. After 10 years, the rental shall be not less than $1.00 per acre. Rental shall be assessed taking into consideration the value of the land as oyster- or clam-growing water bottoms, nearness to factories, transportation and other conditions adding value thereto. If the lessee is dissatisfied with the rental so fixed he can bring an action in circuit court to set the rent.
m. The leases are inheritable, transferrable, and subject to mortgage or pledge. Transfers are invalid until registered in the book of the state board of conservation [now Department of Natural Resources].
n. Anyone who shall wilfully carry or attempt to carry away oysters, shells, clams or cultch without the permission of the owner shall be guilty of a crime.
o. Anyone who gathers oysters between sunset and sunrise unless he has a light attached to his vessel violates the provisions of the section.
p. Closed seasons [between May 1st and Sept. 1st] apply to public beds but not private leases.
q. Although only hand tongs may be used on the public beds, a lessee may use any implements or appliances of his choosing subject to posting a bond to limit their use to leased ground.
r. Severance taxes [which were subsequently repealed] are imposed on oysters.
In 1989, the legislature enacted Chapter 89-432, a special act relating to Franklin County, Florida, and providing, in pertinent part, as follows:
It is unlawful for any person to operate a mechanized dredge or rake in Apalachicola Bay in Franklin County for the purpose of taking or removing oysters or clams. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by imprisonment or fine, or both, as provided by general law.
The 1989 Legislature also enacted Chapter 89-175. 3 Chapter 89-175 imposed various restrictions on the oyster industry. Some of the restrictions at issue are: the imposition of a harvesting license requirement in Section 17; imposition of a surcharge tax in Section 18; the repeal of the exemption of leased beds from the closed seasons in Section 19 and imposition of a per acre surcharge on the leases and new liability for abandoning or vacating a lease in Section 26.
The trial court, in its well-reasoned order, held both statutes unconstitutional. Appellees successfully argued that the special act violates the constitutional prohibition against impairing the obligation of contract, 4 and further that it is an unconstitutional special law pertaining to regulation of occupations which are regulated by state agency. 5 In their attack on Chapter 89-175, appellees claimed that the act violates the single subject requirement of the Florida Constitution, 6 is a prohibited special law regulating their occupation, 7 constitutes an impermissible classification of political subdivisions of the state, 8 and unconstitutionally impairs their oyster leases with the State of Florida. 9
For the reasons set out in this opinion, we affirm the judgment of the trial court finding both of the challenged enactments unconstitutional, and enjoining the state and its agencies from enforcing these laws.
Chapter 89-432 was passed by the legislature as a special or local law, with application only to Franklin County. 10 The act in question completely outlaws the use of any mechanized dredge or rake for the purpose of taking oysters in Apalachicola Bay. Appellees point directly to the language contained in section 370.16(16)(b), Florida Statutes (1953), and incorporated into their leases: "Lessees of bedding grounds shall have the right to use in such bedding grounds any implements, or appliances that they may desire."
We adopt the following portions of the trial court's order pertaining to impairment of appellees' contractual rights by Chapter 89-432:
7. Ch. 89-432, Laws of Florida (S.B. 1542) is a special act which prohibits the operation of mechanized dredges or rakes in Apalachicola Bay in Franklin County for the purpose of taking or removing oysters or clams. There is no genuine issue of material fact that plaintiffs each possess oyster leases containing a term which allows them to use on their bedding grounds any implements or appliances that they may desire.
8. The statute is, as a matter of law, unconstitutional and void because it violates Fla. Const. Art. I, Sec. 10 that 'no law ... impairing the obligation of contract shall be passed.'
9. This court has already upheld this right by the entry of two temporary and two permanent injunctions in these proceedings.
10. The entitlement to use mechanical harvesting appliances is a valuable part of the rights of Plaintiffs under their contracts with the State of Florida. DNR stipulated in these proceedings that:
The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat.
Additional Stipulation dated March 17, 1989.
11. The State, having agreed to contracts granting plaintiffs' rights to mechanically harvest their leases, cannot now impair those leases by passing a special act to take that right away. 'It is axiomatic that subsequent legislation which diminishes the value of a contract is repugnant to our constitution.' Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077, 1080 (Fla.1978). See also, Atlantic & Gulf R. Co. v. Allen, 15 Fla. 637 (1876); Folks v. Marion County, 163 So. 298 (1935); and In re Advisory Opinion to Governor, 509 So.2d 292 (Fla.1987). As the Department of Natural Resources conceded in its memo in opposition to an earlier motion decided herein, even greater scrutiny should be applied to legislation impairing public contracts (those involving the State).
In approving this portion of the trial court's order, we must question the state's proffered interpretation of section 370.16(4)(a), Florida Statutes (1953). 11 Relying upon the 1953 Legislature's use of the phrase "such restrictions as shall herein be stated," the state argues that use of the word "shall" allows modification of, or addition to, the restrictions in these oyster leases by a subsequent act amending section 370.16. We need not, however, reach the validity of the state's novel interpretation, since we observe that the 1989 Legislature, the very same body that enacted Chapter 89-432, also reenacted the 36-year-old provision of section 370.16(16)(b) reserving to the holders of oyster leases the right to use any implements or appliances that they may desire with which to work their leases. 12
The trial court also found Chapter 89-432 unconstitutional, as a matter of law, because it violates Article III, Section 11(a)(20) of the Florida Constitution, prohibiting special laws pertaining to regulation of occupations which are regulated by a state agency. According to the trial court:
We agree that shellfishing is in fact a regulated occupation. Chapter 370 of the Florida Statutes provides that the Department of Natural Resources is "charged with the administration, supervision, development and conservation...
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