CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 272775
...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 *712 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823.01, Florida Statutes, to be unconstitutionally vague after making a preliminary finding that the section superseded the common law and that Section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....
...m 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 Environment 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823.01, Florida Statutes, has been superseded by Chapter 403, Florida Statutes insofar as any application of that section to air pollution is concerned.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....
...al 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....
...714 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....
...enged statute in pari materia with other provisions of Chapter 409, Florida Statutes, as well as certain federal regulations, the court deemed the statute sufficiently definite to give reasonable notice regarding what conduct was forbidden. Although section 823.01 does not unlike section 409.325(2)(a) contain a provision expressly directing resort to other statutes or common law, I cannot conceive that such an omission constitutes a material defect in the statute....
...Anderson,
349 So.2d 164, 168 (Fla. 1977) (emphasis added). Accordingly, a statute that generally tracks the common law or is declaratory of the same can survive a constitutional attack based upon a vagueness challenge. In my judgment the lower court should have analyzed section
823.01 in a manner similar to that undertaken by the Supreme Court of Washington in State v....
...gment thereunder in bar of a second prosecution for the same offense. Primeau, 422 P.2d at 305 (citation omitted). Consequently, I agree with the majority's rejection of the trial court's dismissal of the public nuisance charges for the reasons that section 823.01 must be considered declaratory of the common law regarding public nuisances, and hence must be construed as having sufficiently placed a person of ordinary intelligence on notice that if he or she causes the emission of odors into the atmosphere so as to cause annoyance to the community at large, or a portion thereof, such person commits an unlawful public nuisance. I cannot, however, agree with the majority's conclusion that section 823.01 has been superseded by the enactment of Chapter 403, Florida Statutes. I would first emphasize that the cases relied upon in the majority's opinion for the proposition that chapter 403 supersedes section 823.01 are distinguishable, because they deal with the situation of a general act following a special act which conflicts with the former in situations in which the two laws relate to the same subject matter....
...ounty). The case at bar does not involve a general act that impliedly repealed a special act on the same subject. My more fundamental disagreement with the majority's decision concerns its tacit conclusion that chapter 403 has impliedly repealed [2] section 823.01, insofar as the latter statute attempts to regulate air pollution....
...he two statutes or clear legislative intent that the later act prescribes the only governing rule. Atkinson v. State,
156 Fla. 449,
23 So.2d 524 (1945). Additionally, a statute which has been repeatedly recognized over a long period of time, such as section
823.01, which was first enacted *716 into law in 1832, [3] will similarly not be held repealed unless there is a showing of diametric repugnancy or an intent to repeal....
...ty, and general welfare of the people of this state." Yet, when one examines the specific provisions of chapter 403 establishing criminal penalties for certain violations of the pollution laws, it is readily apparent that the conduct criminalized in section
823.01 is far different and more encompassing. Subsections (3), (4), and (5) of Section
403.161 Florida Statutes (1989), create three classes of crimes for specified violations of the pollution laws. Subsection (4) thereof the criminal penal provision therein most similar to section
823.01 makes it a second-degree misdemeanor [4] for anyone "who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard." Subsection (1)(a) in turn provides that it is a violation of chapter 403 for any person "[t]o cause pollution ......
...ction
403.161(4), or, indeed, any of the other classes of crimes listed under section
403.161, proof must be presented of harm or injury. In contrast, proof of annoyance to the community or injury to health of the citizenry in general is required by section
823.01....
...There is also an element of proof imposed upon the state by section
403.161(4) that the person charged must have acted with reckless indifference or gross careless disregard before such person may be convicted of a second-degree misdemeanor, different from the proof required by section
823.01, which contains no similar language....
...Finally, the punishment for one convicted of a misdemeanor of the second degree under section 401.161(4) is, by reference therein to Section
775.082(4)(b), Florida Statutes (1989), a maximum term of 60 days, or a fine of not more than $5,000, or both. The punishment provided for a violation of section
823.01, which refers only to section
775.083, is a maximum fine of $500 for a conviction of a misdemeanor of the second degree....
...truction, in my judgment, should be applied to the two statutes before us, in that it clearly appears that each has as its purpose the prohibition of different types of conduct. I would thereof reverse the order of dismissal insofar as it holds that section 823.01 has been impliedly repealed by chapter 403....
...prima facie case demonstrating that it had complied fully with the terms of the consent order. I would therefore reverse the order of dismissal as to both appellees, and remand the case for further proceedings consistent with this opinion. NOTES [1] 823.01 Nuisances; penalty....
...[2]
775.01 Common law of England. The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment shall be of full force in this state where there is no existing provision by statute on the subject. [1] Section
823.01 provides: "All nuisances which tend to annoy the community or injure the health of the citizens in general, or to corrupt the public morals, are misdemeanors of the second degree, punishable as provided in s.
775.083." [2] There is no language in chapter 403 expressly repealing, in whole or in part, the provisions of section
823.01. [3] See Historical Note, Fla. Stat. Ann. §
823.01 (West 1976). [4] Section
823.01 also provides that a violation of its provisions is a misdemeanor of the second degree.
