State v. Moo Young, No. 89-1531

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SHIVERS
• Citation: 566 So.2d 1380
• Parties: 15 Fla. L. Weekly D2378 STATE of Florida, Appellant, v. Gary A. MOO YOUNG, Appellee.
• Decision Date: 21 September 1990
• Docket Number: No. 89-1531

Page 1380

566 So.2d 1380 15 Fla. L. Weekly D2378 STATE of Florida, Appellant,
v.
Gary A. MOO YOUNG, Appellee. No. 89-1531. District Court of Appeal of Florida,
First District. Sept. 21, 1990.

Robert A. Butterworth, Atty. Gen., Cynthia Shaw, Asst. Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., Tallahassee, for appellant.

Wm. J. Sheppard and Cyra C. O'Daniel, of Sheppard and White, P.A., Jacksonville, for appellee.

SHIVERS, Chief Judge.

The State appeals a county court order granting defendant Moo Young's motion to dismiss information. The trial court found section 538.011, Florida Statutes (1987) (repealed 1989) to be "unconstitutionally vague allowing for arbitrary enforcement."

Section 538.011 requires precious metals dealers to make records and reports of purchases of precious metals. It provides

Page 1381

that violations of the statute will be considered first-degree misdemeanors.

We reverse the trial court's finding that the language of section 538.011, Florida Statutes (1987) is unconstitutionally vague. State criminal statutes may be held void for vagueness under the due process clause where they either: (1) fail to give fair notice to persons of common intelligence as to what conduct is required or proscribed; or (2) encourage arbitrary and erratic enforcement. Although section 538.011 is clearly a state criminal statute, the federal district court in Mid-Fla Coin Exchange, Inc. v. Griffin, 529 F.Supp. 1006 (M.D.Fla.1981) found that its predecessor statute (section 812.051) arguably fit within the narrow category of regulatory legislation which the United States Supreme Court had stated should be given greater leeway when challenged on vagueness grounds than those statutes aimed at regulating "purely individual behavior." 529 F.Supp. at 1027. Under this less stringent standard, section 538.011 would be found constitutional so long as it establishes a "reasonably definite standard of conduct." Id. at 1028. Because the statute contained no scienter or requirement of culpable intent, however, the court found it to be subject to the regular, higher, level of judicial scrutiny. Likewise, section 538.011, F.S. (1987) contains no requirement of knowing violation in order for the perpetrator to be found guilty of committing a first-degree misdemeanor. It thus appears that the regular test for vagueness applies in the instant case. See Newman v. Carson, 280 So.2d 426, 430 (Fla.1973) finding section 811.165, F.S. (1970) (the predecessor statute to section 812.051) to be neither vague nor indefinite, using as its standard "whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice."

In Mid-Fla, the district court granted the plaintiffs' application for an order enjoining the enforcement of section 812.051, F.S. (1981), finding it to be likely that the plaintiffs would succeed on their claim that certain provisions of the statute violated the commerce clause, subjected precious metals dealers to unreasonable searches and seizures, and were unconstitutionally vague. Section 812.051, F.S. (1981) and its corresponding definition section, 812.049, are the predecessor statutes to current sections 538.01 and 538.021 (purchases by junk dealers, scrap metal processors, and foundries), as well as sections 538.01 and 538.011 (purchases by precious metals dealers).

In 1983, the regulation of metal dealers, processors, and founders was removed from Chapter 812 (Theft, Robbery, and Related...