State v. SCM Glidco Organics Corp., s. 89-2465

• Decision Date: 23 December 1991
• Docket Number: Nos. 89-2465,89-2937,s. 89-2465
• Citation: 592 So.2d 710
• Parties: 17 Fla. L. Weekly D76 STATE of Florida, Appellant, v. SCM GLIDCO ORGANICS CORPORATION and Seminole Kraft Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 710

592 So.2d 710

17 Fla. L. Weekly D76

STATE of Florida, Appellant, v. SCM GLIDCO ORGANICS CORPORATION and Seminole Kraft Corporation, Appellees.

Nos. 89-2465, 89-2937.

District Court of Appeal of Florida First District.

Dec. 23, 1991.

Rehearing Denied Jan. 24, 1992.

Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., for appellant.

Edward M. Booth, Booth & Arnold, and Tim E. Sleeth and Alan D. Henderson, Smith & Hulsey, Jacksonville, for appellee SCM Glidco.

John A. DeVault, III, Charles P. Pillans, III, and Thomas M. Beverly, of Bedell, Dittmar, DeVault & Pillans, Jacksonville, for appellee Seminole Kraft.

VICTOR CAWTHON, Senior Judge.

These two criminal appeals by the state from orders of dismissal of the County Court in and for Duval County come directly to this court because each trial judge declared a state statute invalid, Fla.R.App.P. 9.030(b)(1)(A) and Section 26.012(1), Florida Statutes, and because each declared the same statute invalid, the appeals have been consolidated.

Both respondents, Glidco Organics Corporation and Seminole Kraft Corporation, operated paper mills in Duval County and both were charged with violations of Section 823.01, Florida Statutes ¹, but only Kraft was in 1988 charged with violations of Chapter 403, Florida Statutes.

Both trial court judges dismissed the common charges because they found Section 823.01, Florida Statutes, to be unconstitutionally vague after making a preliminary finding that the section superseded the common law and that Section 775.01, Florida Statutes ², therefore prohibited reference to the common law of nuisance to supply a definition of nuisance as used in Section 823.01, Florida Statutes.

We disagree with the preliminary finding because we feel that while the exception in Section 775.01, Florida Statutes, may prevent the English common law on the crime of nuisance from being in full force in this state, it does not prohibit the use of English case law as an aid in establishing legislative intent, State v. Hagan, 387 So.2d 943 (Fla.1980).

The failure of the trial judges to consider English case law necessarily impeded their proper consideration of the constitutionality of the statute involved and this together with the principle that "... every reasonable doubt must be indulged in favor of the act, the constitutionality of which is questioned," Holley v. Adams, 238 So.2d 401 (Fla.1970) and the Florida Supreme Court's recognition of the difficulty of writing specificity into nuisance statutes as shown by the following quotation from Orlando Sports Stadium v. State, 262 So.2d 881 (Fla.1972):

It is not possible to define comprehensively "nuisances" as each case must turn upon its facts and be judicially determined.

Id. at 884, causes us to conclude that it was error to declare Section 823.01, Florida Statutes, unconstitutional.

However, we find that the dismissal of the charges of violations of Section 823.01, Florida Statutes, was correct because of the clear legislative intent manifested in Section 403.021, Florida Statutes, that Chapter 403, Florida Statutes, should cover the entire subject of air pollution and that earlier, nonspecific legislation should be inapplicable thereto, Berkley v. State, Department of Environmental Regulation, 358 So.2d 552 (Fla. 1st DCA 1977); Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983) approved Ingraham v. Dade County School Board, 450 So.2d 847 (Fla.1984); Zedalis v. Foster, 343 So.2d 849 (Fla. 2d DCA 1976).

We therefore hold that Section 823.01, Florida Statutes, has been superseded by Chapter 403, Florida Statutes insofar as any application of that section to air pollution is concerned.

In addition to the violations of Section 823.01, Florida Statutes, which we have just discussed, the respondent Kraft was charged with violations of Chapter 403, Florida Statutes, the constitutionality of which has not been seriously questioned in this litigation.

The trial court held that the state was estopped from prosecuting Kraft for the alleged violations of Chapter 403, Florida Statutes, because of the consent decree entered into between the State of Florida, Department of Environmental Regulation, and Kraft on October 28, 1986, the pertinent provisions of which read as follows:

42. Nothing herein shall be construed as an admission of liability by Respondent [Seminole Kraft Corporation] nor as a release of any liability by the Department or BESD [the City of Jacksonville, Bio-Environmental Services Division].

43. The Department and BESD hereby expressly reserve the right to initiate appropriate legal action to prevent or prohibit the future violation of applicable statutes, or the rules promulgated thereunder.

* * * * * *

45. The Department and BESD, for and in consideration of the complete and timely performance by Respondent of the obligations agreed to in this Consent Order, hereby waive their right to seek judicial imposition of damages against Seminole Kraft, or civil or criminal penalties for violations outlined in this Consent Order. Respondent waives its right to a hearing or judicial review of the terms of this Consent Order, except in cases of third party intervention.

46. Except as set forth herein, entry of this Consent Order does not relieve Respondent of the need to comply with all other applicable federal, state, or local laws, regulations, or ordinances. The entry of this Consent Order does not abrogate the rights of substantially affected persons who are not parties to this Consent Order, pursuant to Chapter 120, Fla.Stat.

47. The terms and conditions set forth in the Consent Order may be enforced in a court of competent jurisdiction pursuant to Sections 120.69 and 403.121, Fla.Stat. Failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161(1)(b), Fla.Stat.

Kraft pled estoppel as an affirmative defense pursuant to Fla.R.Crim.P. 3.190(b) & (c), and there was no traverse filed prior to the hearing on the motion to dismiss as required by Fla.R.Crim.P. 3.190(d).

We agree with the trial judge that the state attorney is the attorney for the state and it is the state and not the state attorney who can be estopped by the official acts of its department heads, and more specifically, as in this case, by the head of the department which we have previously recognized in this opinion to have been created by the legislature to, among other things, protect the environment from air pollution. Since the affirmative defense of estoppel was adequately pled; i.e., all the essential elements such as compliance with the consent order of October 28, 1986, having been alleged under oath and since there was no traverse filed, the dismissal of the counts to which this defense was directed was proper.

We note that the opinion in State v. Higgins, 437 So.2d 180 (Fla. 4th DCA 1983), which is cited by the state in support of its claim that its oral traverse at the time of the hearing should have been accepted, gives three additional reasons--any one of which would seem to be adequate--for reversing the dismissal.

The dismissal in each appeal is affirmed but the holding in each case that Section 823.01 is unconstitutional, is disapproved.

WIGGINTON, J., concurs.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge, concurring and dissenting.

I concur with the majority's conclusion that Section 823.01, Florida Statutes, is not unconstitutionally vague. I dissent however, from those portions of the majority's opinion holding (1) that section 823.01 has now been superseded by Chapter 403, Florida Statutes, to the extent, as stated by the majority, that the former statute attempts to regulate air pollution, and (2) that the state is estopped from prosecuting defendant Kraft for alleged violations of chapter 403.

Although, as stated, I concur with the majority's disposition of point I, I consider that it would be helpful to a more thorough understanding of the term "public nuisance" to discuss in greater detail the reasons why section 823.01 survives a vagueness challenge, in addition to those advanced by the majority. The informations filed against the two defendants charged each with separate acts of public nuisance on separate dates by emitting objectionable odors into the atmosphere, which tended to annoy the community, contrary to the provisions of section 823.01. ¹ In deciding that the statute on which the informations were based was unconstitutionally vague, the county court judge specifically declined to resort to the common law of England which, pursuant to Section 775.01, Florida Statutes, is made applicable to crimes in Florida if "there is no existing provision by statute on the subject." Relying upon this provision, the lower court concluded that because the common law regarding public nuisances has been superseded by section 823.01, reference to the common law for the purpose of curing any deficiency in the language of the statute was unnecessary, and, in that the statute omits essential provisions which are necessary to place persons of common intelligence on notice as to what conduct is prohibited by the statute, section 823.01 must be declared unconstitutionally vague.

While stating the correct test for gauging the vagueness issue, the county judge, in my opinion, nonetheless misapplied it in reaching his decision. This test "is whether men of common understanding and intelligence must necessarily guess at [the statute's] meaning. To meet the constitutional challenge of vagueness, a statute must convey a sufficiently definite warning as to what conduct is proscribed." State v. Rodriquez, 365 So.2d 157, 159 (Fla.1978). In Rodriquez, the court was confronted with the question of whether Section 409.325(2)(a), Florida Statutes (Supp.1976), criminalizing the fraudulent use of food stamps, was unconstitutionally vague. In applying the above test, the court upheld the statute because the...