State v. Whites Landing FisheriesState v. Whites Landing Fisheries
William H. Smith, Jr., for appellee.
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DECISION AND JUDGMENT
OSOWIK, P.J.
{¶ 1} This is a consolidated appeal from the Sandusky Municipal Court, which on July 2, 2010, granted defendant‘s motion to dismiss four misdemeanor charges in violation of
{¶ 2} On February 17, 2009, Whites Landing Fisheries, Inc. filed a motion to dismiss the misdemeanor charges. The state of Ohio filed a response to that motion on January 27, 2010. Subsequently, the trial court granted defendant‘s motion to dismiss. A timely notice of appeal was filed on July 29, 2010.
{¶ 3} From that judgment, appellant sets forth the following assignments of error:
{¶ 4} “1. THE TRIAL COURT ERRED HOLDING THAT THE DIVISION OF WILDLIFE ENGAGED IN SELECTIVE ENFORCEMENT AND VIOLATED WHITES FISHERIES’ CONSTITUTIONAL RIGHTS.
{¶ 5} “2. THE TRIAL COURT ERRED IN CONCLUDING THAT OFFICER RAMSEY‘S DEPOSITION TESTIMONY BOUND THE STATE AND ESTOPPED THE STATE FROM ENFORCING ITS COMMERCIAL FISHING LAWS.
{¶ 6} “3. THE TRIAL COURT ERRED IN HOLDING THAT
{¶ 7} The following undisputed facts are relevant to the appeal before us. Whites Landing Fisheries (“appellee“) is a company engaged in the commercial fishing industry on Lake Erie. The business is owned and operated by Dean Koch. He is licensed to conduct commercial fishing by the Ohio Department of Natural Resources (“ODNR“).
{¶ 8} The state of Ohio (“appellant“) filed four misdemeanor charges against appellee for violations of Ohio‘s commercial fishing laws in Lake Erie, Ohio, on September 29, 2008, and October 7, 2008. All four charges were from activity, in violation of
{¶ 9} Appellee submitted testimony of Officer Kevin Ramsey, the Law Enforcement Supervisor of the Lake Erie Unit. The testimony was taken from Great Lakes Commercial Fisherman, LLC v. Sean Logan, Director, in case No. CI08-6023 in the Court of Common Pleas, Lucas County, Ohio. Based on this deposition testimony, the trial court granted appellee‘s motion to dismiss.
{¶ 10} The first and second assignments of error are prefaced on the same assumption. As such, we will address them simultaneously.
{¶ 11} “On and after March 1, 2008, no commercial fishing licensee shall use or engage in fishing with commercial gear unless the licensee uses vessel and catch monitoring devices in accordance with requirements and procedures established by the chief of the division of wildlife. The chief shall establish requirements and procedures concerning vessel and catch monitoring devices by division rule. A licensee shall pay the costs of purchasing, installing, and maintaining the devices.”
{¶ 12} Appellant contends the misdemeanor charges were proper and that there was not selective enforcement. Appellee simply did not comply with
{¶ 13} In order for selective enforcement to reach the level of unconstitutional discrimination, the discrimination must be “intentional or purposeful.” Snowden v. Hughes (1944), 321 U.S. 1, 8. See United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211. In order for selective enforcement to amount to a denial of equal protection, an element of purposeful or intentional discrimination must be shown, and this is not satisfied by a mere showing that others similarly situated have not been prosecuted. W. Chester Twp. Bd. of Trustees v. Speedway Superamerica, LLC (2007), 2007-Ohio-2844, ¶ 49.
{¶ 14} Based on the record and seminal case law, the four misdemeanor charges were proper, pursuant to
{¶ 15} In conjunction with this, appellant contends the deposition testimony from Ramsey does not bar the state from enforcing its commercial fishing laws. We concur. In testimony from the deposition which appellee relies on, Ramsey clearly explains that discretionary enforcement would apply to those with vessel and catch monitoring devices in order to address preliminary glitches and facilitate compliance with
{¶ 16} “Q: I‘m talking about the ECRS system, the Electronic Catch Reporting System. The data sent from the vessel, and how long before the information is sent that someone is going to look at that data just like the paper reporting system you had in place where the data just like the paper reporting system you had in place where the data would be, the reports would be submitted, someone would review those.
{¶ 17} “A: I mean, I‘m not sure exactly, we don‘t have protocol for that right now. I mean it‘s a new system, everything is new: and - -
{¶ 18} “Q: Right
{¶ 19} “A: - before we started the system up, we had a meeting with the commercial fishermen, with any of them that wanted to come. We basically told them because the system is new, there will be a few glitches.
{¶ 20} “Q: Sure.
{¶ 21} “A: But we will do, what we want to do is work with you; and if you have glitches, call us this year. Just call us up, tell us what you did, tell us what happened, there will be no enforcement action whatsoever.
{¶ 22} “Q: That was in 2008, right?
{¶ 23} “A: Sure.
{¶ 24} “Q: Yeah.
{¶ 25} “A: We didn‘t start until late, we didn‘t start until late. And we did, we actually got some phone calls came in, hey, I did this by mistake. Even a couple, hey, I forgot the handheld when I went out. So basically we just told them, hey, make sure you remember it. There was no enforcement action taken.
{¶ 26} “A: So we‘re trying to work through these steps with folks and we‘re trying to get everyone acclimated to it so they can become familiar with it, you know, and there would be no enforcement action taken because it‘s a new system for both of us.
{¶ 27} “Q: Is there going to be an enforcement action in 2009 as you work out the kinks?
{¶ 28} “A: No, we need to keep working until everyone is comfortable.”
{¶ 29} The Supreme Court of Ohio has refused to apply principles of estoppel against the state, its agencies or its agents. Griffith v. JC Penny Co. (1986), 20 Ohio St.3d 112. There is no reason to depart from precedent and apply the doctrine of equitable estoppel under the circumstances of this case. If a government agency is not permitted to enforce the law because the conduct of its agents has given rise to an
{¶ 30} Appellant cites and relies on Great Lakes Commercial Fisherman LLC v. Sean Logan, Director (Mar. 31, 2010), 6th Dist. No. L-09-1180. This court affirmed the trial court, which granted the state‘s motion for summary judgment when the deposition of Officer Ramsey was submitted by counsel for defendant. Appellee maintains the matter before us is somehow distinguishable because it is an exceptional case, such that the private rights of individuals are of more persuasive force in a particular case than the right of the public. We do not concur. Estoppel does not arise if the act done is in violation of law.
{¶ 31} As previously indicated, Ramsey‘s deposition testimony applied to vessels which have and use vessel and catch monitoring devices. Regardless of whether his testimony was taken completely out of context, estoppel does not prevent an Ohio Wildlife Officer from enforcing
{¶ 32} In the third assignment of error, appellant contends
{¶ 33} Pursuant to
{¶ 34} After careful review of the record, we hold that the trial court erred in the arbitrary dismissal of the underlying charges. Granting appellee‘s motion to dismiss was unreasonable. Appellee‘s constitutional rights were clearly not violated.
{¶ 35} On consideration whereof, the judgment of the Sandusky Municipal Court is reversed. This case is remanded to the Sandusky Municipal Court for further proceedings consistent with this decision. Appellee is ordered to pay the costs pursuant to App.R. 24.
JUDGMENT REVERSED.
Mark L. Pietrykowski, J. JUDGE
Arlene Singer, J. JUDGE
Thomas J. Osowik, P.J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.