Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-1111
of :
: MAY 4, 1993
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DAN McCORQUODALE, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
Is Fish and Game Code section 7147 constitutional in requiring owners and operators
of commercial passenger fishing boats to ensure that all persons fishing from their boats are in
possession of a valid fishing license?
CONCLUSION
Fish and Game Code section 7147 is constitutional in requiring owners and operators
of commercial passenger fishing boats to ensure that all persons fishing from their boats are in
possession of a valid fishing license.
ANALYSIS
Fish and Game Code section 7147,1/ which was enacted in 1992 (Stats. 1992, ch. 701,
§ 4), provides as follows:
"The owner or operator of a boat or vessel licensed pursuant to Section 7920
shall not permit any person to fish from that boat or vessel unless that person has, in
his or her possession, a valid sportfishing license, sport ocean fishing license, or
sport ocean fin fishing license and any required license stamp."
1. Unless otherwise specified all section references herein are to the Fish and Game
Code.
The owner or operator to which section 7147 applies is indicated in section 7920, which provides
in part as follows: "The owner of any boat or vessel who, for profit, permits any person to fish
therefrom, shall procure a commercial passenger fishing boat license."
We are asked to determine whether section 7147 is constitutional in requiring boat
and vessel owners and operators to ensure that their passengers are in possession of a valid fishing
license. Three questions arise in this regard: does the statute improperly require the owners and
operators to act in the capacity of peace officers; does it unduly interfere with the efficient operation
of commercial passenger fishing boats; or does it create other compliance and enforcement
difficulties because it is vague and ambiguous? For the reasons which follow, we find that the
statute in question is a lawful exercise of the state's police power and does not suffer from the
asserted constitutional infirmities.
We begin by noting that in the same legislation by which section 7147 was enacted,
the Legislature enacted section 710.7 as follows:
"(a) The Legislature finds and declares all of the following:
"(1) The department continues to face serious funding instability due to
revenue declines from traditional user fees and taxes and the addition of new
program responsibilities.
"(2) Historically, the commercial fishing industry has funded much of the
department's marine fisheries activities.
"(3) As the state's population grows and land uses change through urban
development, fish and wildlife resources continue to be depleted, necessitating a
significant portion of the department's activities to be directed toward protecting fish
and wildlife resources for the benefit of the general public.
"(b) It is the intent of the Legislature to extend the current user-based
funding system by allocating a portion of the marine resource protection costs to
those who use and benefit from wise management of the marine fishery resources.
"(c) It is the Legislature's intent that . . . the department shall cooperate with
the Legislature and the commercial fishing industry to identify and propose new
alternative sources of revenue to fund the department's necessary marine resource
management and protection responsibilities."
Given the foregoing statement of legislative intent, it is evident that the Legislature, by requiring the
owner or operator of a commercial passenger boat to ensure that all fishing passengers are in
possession of a valid and appropriate fishing license, sought to strengthen the user-based funding
system for the protection of the state's fish resources. We proceed to analyze the question presented
in light of this legislative purpose.
The enactment of section 7147 represents an exercise of the state's police power as
part of its authority to protect and preserve fish and game for the public's use and benefit. (See
People v. Stafford Packing Co. (1924) 193 Cal. 719, 730; People v. Marine Products Co. (1947) 77
Cal. App. Supp. 2d 929, 934.) Since the state is the owner of its fisheries for the benefit of its
citizens, the Legislature has the right to permit persons to take fish on such terms and conditions as
it may impose in accordance with the state's duty to preserve the fishery resource for the general
public. (People v. Brady (1991) 234 Cal. App. 3d 954, 958 [individual's right to hunt and fish is a
2. 92-1111
qualified right subject to the authority of the Legislature to impose conditions it deems necessary
for the public good]; Pacific Gas & Electric Co. v. Moore (1940) 37 Cal. App. 2d 91, 96 [the state
may permit or prohibit the catching of fish within its waters; fishing may be regulated by the
imposition of such conditions, restrictions, and limitations as the state deems needful or proper].)
The presumption of validity which attaches to a legislative body's action in the
exercise of the police power is particularly strong in connection with the state's conservation of its
fisheries. (See Young v. Department of Fish & Game (1981) 124 Cal. App. 3d 257, 280; People v.
K. Sakai Co. (1976) 56 Cal. App. 3d 531, 536.)
Here, in the interest of promoting its stewardship of the state's fisheries, the
Legislature has imposed an additional condition on the conduct of the business of operating a
commercial passenger fishing boat.2/ The owners and operators of such boats and vessels
purposefully facilitate and directly profit from the activity of sport fishing. They are therefore among
"those who use and benefit from wise management of the marine fishery resources" (§ 710.7) and,
as such, fall within the ambit of those who may be expected to bear the burdens of the legislative
act of which section 7147 is a part.
Because of their direct connection with the activity of sport fishermen, and as they
are uniquely situated for serving as a sport fishing license checkpoint, the owners and operators of
commercial passenger fishing boats may reasonably be compelled to help ensure that their
passengers are licensed for the privilege of taking fish from the ocean waters of the state. Due to
the reasonable relationship between the statute and its object of conserving the state's fisheries by
reinforcing the user-based funding system, the affected owners and operators may not successfully
attack the validity of the statute merely because their compliance may strike them as being awkward
or unnecessary.3/
Neither do we view section 7147 as presenting problems of uncertainty that would
undermine its constitutionality. Only certain aspects of its application, such as whether it allows
fishing from the boat by minors who are not normally required to have a fishing license, might be
deemed problematical. Even under the strict standard applicable to criminal statutes, such incidents
of uncertainty in the application of section 7147 would not be fatal to its enactment. As stated by
the Supreme Court in Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1201:
2. Various requirements are applicable to commercial passenger fishing boats. (See,
e.g., §§ 7923 [requiring a true record of all fish taken and compliance with Fish and Game
Commission regulations], 7924 [subjecting a commercial passenger fishing boat license to
suspension or revocation for the selling or purchasing of fish taken in state waters under a sport
fishing license].)
3. The situation presented here is similar to that faced by a liquor store owner or
nightclub operator who must check the identification of youthful patrons to ensure that the persons
are not below the legal age for consumption of alcoholic beverages. (See Bus. & Prof. Code, §§
25658, 25659.) This has long been accepted as one of the necessary burdens of doing business in
an area of commerce where the state has a strong interest.
Even in the extreme situation of a person without a sportfishing license not being dissuaded
from boarding the fishing boat by its owner or operator, section 7147 does not call upon the owner
or operator to act as a peace officer. Local law enforcement authorities may be appropriately
summoned to deal with the matter.
3. 92-1111
". . . Many, probably most, statutes are ambiguous in some respects and
instances invariably arise under which the application of statutory language may be
unclear. So long as a statute does not threaten to infringe on the exercise of First
Amendment or other constitutional rights, however, such ambiguities, even if
numerous, do not justify the invalidation of a statute on its face. In order to succeed
on a facial vagueness challenge to a legislative measure that does not threaten
constitutionally protected conduct . . . a party must do more than identify some
instances in which the application of the statute may be uncertain or ambiguous; he
must demonstrate that ``the law is impermissibly vague in all its applications.'
[Citations.]"
Finally, we note that an administrative agency charged with implementing a statutory enactment
may, in most instances, provide an authoritative construction resolving any uncertainty. (Pennisi
v. Department of Fish & Game (1979) 97 Cal. App. 3d 268, 277.)
We conclude, therefore, that in requiring owners and operators of commercial
passenger fishing boats to ensure that all persons fishing from their boats are in possession of a valid
fishing license, section 7147 is a proper exercise of the state's police power and is constitutional.
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