Opinion
No. 78-1551
Decided January 9, 1980.
Division of Wildlife — Commercial fishing license — Properly denied, when — Ohio Adm. Code 1501:31-3-03 (B) not impermissibly vague.
APPEAL from the Court of Appeals for Lucas County.
This cause originated as an administrative licensing proceeding before the Division of Wildlife, Ohio Department of Natural Resources. That division, in accordance with R.C. 1533.342 established a "limited entry" program for regulating the issuance of commercial fishing licenses on Lake Erie and elsewhere within Ohio. Under this program the number of commercial fishermen was limited to control the size of the annual fish harvest.
This licensing system was instituted by the promulgation of Section 1501:31-3-03 of the Ohio Administrative Code, which, as it stood in 1977, governed the proceedings in this cause. Subsection (A) of Ohio Adm. Code 1501:31-3-03, as a grandfather provision for this program, provided that those entities possessing a commercial fishing license in 1975 would be issued licenses in 1976 and thereafter if certain requirements were followed. The issuance of new licenses was governed by subsection (B) of that regulation, which is the center of controversy in this cause.
Ohio Adm. Code 1501:31-3-03 (A) at the time this cause arose in 1977 provided, in its pertinent part, as follows:
"Except as provided in Division (B) of this rule, only those persons holding commercial fishing licenses in 1975, except trotline licenses, will be licensed to fish in 1976 and thereafter, provided they have made proper application and paid the required fees by March first of each year, and have complied with the necessary provisions in Chapters 1531 and 1533 of the Revised Code and division of wildlife orders in previous fishing seasons."
Appellees, Gerald Smith and Carl H. Smith, Jr., the applicants herein, fell within the grandfather provisions of this program and submitted a renewal application to the Division of Wildlife for a commercial fishing license for the year 1977. The applicants, however, failed to comply with Ohio Adm. Code 1501:31-3-03 (A) and thus lost their continued licensing status under the grandfather clause. The applicants were thereafter treated as new license seekers and were placed at the top of a waiting list for such licenses. No new licenses were granted in 1977.
The applicants challenged the adjudicative hearing that resulted in the denial of their application in the Court of Common Pleas of Lucas County, pursuant to R.C. 119.12. That court affirmed the adjudicative order of the Division of Wildlife in all respects. Upon appeal, the Court of Appeals upheld that portion of the administrative decision which denied the applicants their preferential licensing status under Ohio Adm. Code 1501:31-3-03 (A). This determination is not now before this court. However, the Court of Appeals also held that Ohio Adm. Code 1501:31-3-03 (B) was impermissibly vague because it failed to establish specific procedures for granting or denying licenses to new commercial fishing applicants. Based upon this conclusion, the court further determined that the decision to deny the application in this cause was arbitrary and capricious. The court went on to order the issuance of a new 1977 license to the applicants.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Rhode, Kaufman, Egger Reno Co., L.P.A., and Mr. Ronald G. Kaufman, for appellees.
Mr. William J. Brown, attorney general, and Mr. Stephen P. Samuels, for appellant.
The portion of the statutory licensing scheme at issue here, former Ohio Adm. Code 1501:31-3-03 (B) provided, in pertinent part, that "[b]eginning in 1976 and thereafter, new commercial fishing applicants, except trotline applicants may, at the discretion of the chief, be granted a license provided they meet the specifications and requirements set forth in section 1533.342 of the Revised Code." Appellees contend, and the Court of Appeals agreed, that this regulation, when read alone, gives unfettered discretion to the Chief of the Division of Wildlife in granting these licenses. It is further argued that the failure to provide licensing guidelines renders this regulation unconstitutionally vague and thus void.
Regulations, however, should not be read in a vacuum but must be read with reference to the enabling statute under which they were enacted. Mourning v. Family Publications Service (1973), 411 U.S. 356, 369; American Trucking Assns. v. United States (1953), 344 U.S. 298. In this instance Ohio Adm. Code 1501:31-3-03 (B) was valid because of extensive guidelines set forth by the General Assembly in R.C. 1533.342. Under R.C. 1533.342 the Chief of the Division of Wildlife cannot act alone in establishing licensing limitations but may act only with the approval of the Wildlife Council. The statute provides that the Chief and Wildlife Council shall give consideration to:
"***the number and type of licenses needed to harvest the fish determined to be harvestable; the capacity of the boats and characteristics of the equipment owned or used by the applicant; and any other facts or data relating to the protection, preservation, management, and utilization of fish species in a biologically sound manner."
In addition, R.C. 1533.342 further provides that the Chief may require information from the applicant:
"***relating to the kind and condition of boats and fishing equipment proposed to be used by the applicant, port or ports of entry, years of commercial fishing experience, quantity and kinds of fish taken during the previous years, conviction records relating to Chapters 1531 and 1533 of the Revised Code and division orders, and such other facts as the chief of the division of wildlife determines necessary to assist him in determining whether or not the applicant may engage in commercial fishing in accordance with Chapters 1531 and 1533 of the Revised Code and division orders."
The regulation, when read in conjunction with the statute, reveals a legislative scheme adequate to safeguard against administrative capriciousness.
The specificity requirements which must be met by a criminal statute are not required in the licensing context. Salem v. Liquor Control Comm. (1973), 34 Ohio St.2d 244, 246.
The Court of Appeals, however, further held that the Division of Wildlife acted arbitrarily and capriciously by failing to consider the factors set forth in R.C. 1533.342. The record of the adjudicative hearing in this cause does not clearly demonstrate that these statutory factors were considered. The Division of Wildlife did not seek to offer extensive evidence concerning the limit placed on licenses, but rather concentrated on establishing that the applicant was not entitled to continued licensing under the grandfather provision of Ohio Adm. Code 1501:31-3-03 (A). This occurred because the applicants did not squarely raise an issue concerning compliance with the statutory factors in R.C. 1533.342. Not until the regulation's constitutionality was challenged on appeal was this issue properly framed. While the applicants could not prove that these factors were disregarded, the burden was on them in the instant cause to raise this issue. It would be unreasonable to require the Division of Wildlife to come forth with biological data to justify the limits that they have established on new licenses when the issues raised by the applicants concerned their treatment as "renewal" applicants. When the limit on the number of licenses is raised by an applicant, the Division of Wildlife must demonstrate its compliance with R.C. 1533.342. Such was not the situation, however, in the instant cause.
The harvestability of the fish as one of the primary factors to be taken into account pursuant to R.C. 1533.342 in determining the number and type of licenses was raised with only one witness. That individual, an enforcement supervisor with the Division of Wildlife, professed no knowledge of the considerations in this area, but instead deferred to the Chief of the division and to the division's biologist. No questions were asked the Chief of the Division of Wildlife, during his testimony at the adjudicative hearing concerning this harvestability factor.
We therefore hold that former Ohio Adm. Code 1501:31-3-03 (B) was not impermissibly vague, in light of the extensive guidelines established by R.C. 1533.342, and further find that the applicants have not proven that the Division of Wildlife's denial of a new license was arbitrary under that latter provision. Therefore, the license sought by the applicants should not have been issued, and the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.