Posted by:
trust
at Sat Mar 26 08:34:43 2005 [ Email Message ] [ Show All Posts by trust ]
Here's the way the law works - the FWC is an administrative agency, tasked with implementing and enforcing laws in an area of law delegated to them by the FL legislature and by the FL constitution.
As with any administrative agency, the state legislature enacts general statutes, and the agency is tasked with creating rules that implement these statutes. There is a procedure by which agencies make rules, and it includes public hearings and notice to the public regarding these hearings. Members of the public are allowed to speak, but the agency doesn't have to give any weight to anything anyone says at these hearings, they just have to have them.
The FL statutes simply state that a permit is required to possess "venomous reptiles," but the statutes don't define what a "venomous reptile" is. Ordinarily that is something an agency would do - they would hold hearings, commission reports, and make a rule defining what an undefined term in a statute means.
To the best of my knowledge, the FWC has never defined the term in accordance with proper legal procedure, resulting in a published rule. I looked into this extensively when I was in law school and taking administrative law. As it stands, enforcement of the statute is left to FWC officer's judgment. They have some very good, knowledgeable people working for them and I've spoken with a few of them. They designate officers in the various regions for enforcing the venomous permits, and essentially whatever that officer says is venomous is venomous.
There is, or at least was when I was researching it, scant little case law in FL on the subject, and none of them challenged the agency rules, or lack thereof. I suspect that was because they dealt with unquestionably venomous snakes, that being native EDBs.
I was of the opinion that one could challenge enforcement of the law because it is vague and arbitrarily enforced ('arbitrary' in the legal sense, not to imply unprofessional on the part of the FWC). Hognesed snakes are OK, while other rear fanged are not, for example. Especially given the research Dr. Frye has published, there is truly a question as to what is 'venomous,' or at least what 'venomous' should mean as a legal standard.
But, seeing as how it would likely cost $8000 - $10000 in legal fees to challenge the law and the FWC, I suspect most people would rather just give up their snakes and pay the fine instead, so it's unlikely to be resolved, and whatever the FWC officers say is venomous will be, effectively, the rule.
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RE: Legalities of Mangrove snakes in Florida - trust, Sat Mar 26 08:34:43 2005