The opinion
STATE OF MAINE UCD: MACHIAS
W ASI IINGTON, ss DOCKET NO. CR-17-050
S'l'ATE OF MAINE )
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vs ) DECISION AND ORDER
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TYLER B. DA VIS )
Defendant )
The Defendant, Tyler B. Davis, is charged with Engaging in Activities While Under
Suspension, Title 12, MRSA §6406. A jury waived trial was held on May 18, 2017 at
which the parties stipulated to the following facts .
FACTS
Defendant had previously possessed a license for shellfish, or clamming. He committed
some form of clamming violation for which he was assessed a fine. The Defendant failed
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to pay that fine and his shellfish/clamming license was suspended by the Department of
Marine Resou rces. 1
Ou December 27, 2016, while his shellfish li cense was still under suspension, the
Dde n<lanl was working as a stem man on a scallop boal. 2 The hoal and its caption were
properly licensed. The State and Defendant agree that no form of license is required to
work as a stern man on a scallop boat. The State however asserts that the Defendant was
none-the-less prohibited from working as a stern man due to his suspended shellfish
license.
DISCUSSION
1
A copy of the Notice of Suspension issued to the Defendant was not admitted into
evidence, but the Defendant acknowledged he knew his shellfish license had been
suspended .
2
Admitted as Exhibit 1 is Cc1tificatc of Authenticity which inidicates that on December
27, 2016 the Defendant's right to obtain all Department of Marine Resources licenses
was under suspension. See Footnote l; there is no evidence in this record that the
Defendant was given notice that a// licenses had been suspended .
The charge brought against the Defendant by the Complaint dated January 30, 2017 is
hngaging in Activities While Under Suspension, Title 12, MRSA § 6406. By a
Complaint dated January 30, 2017 it is alleged that "On or about December 27, 2016, in
Lubec,Washington County, Maine, Tyler B Davis, did, when his license or right to obtain
a license was under suspension, engage in a licensed activity." Section 6406(l)(A) states
"It is unlawful for any person whose license or right to obtain a license is under
suspension to engage in any licensed activity." The critical question for this case is
whether working as a stern man is "engaging in any licensed activity."
In its argument at trial, the State points to Title 12, MR.SA §6702. Section 6702(1)
License Required states:
a person may not use a boat for dragging for scallops in the State's territorial
waters unless that person holds a scallop dragging license issued by the
commissioner and that boat is identified on the license.
Section 6702(2) -Licensed activity states:
A person licensed under this section may use the boat identified on the license to
drag for scallops in the State's territorial waters and possess, ship, sell or transport
shucked scallops taken under the license. '/'he license also authorizes the captain
and crew members aboard the boat identified on the license when engaged in
dragging/or scallops to undertake those activities, except that the captain and
crew members may not fish for or take scallops if the license holder is not aboard
that boat ...
So, Section 6702 does require a license for a person to use a boat for dragging of
scallops, and if licensed, that person may use the licensed boat and the captain and crew
members aboard the licensed boat may engage in the activities related lo dragging for
scallops. The State asserts that those related activities performed by a stern man, even
though no license is required to be a stern man, is the type of "licensed activity" a person
with a suspended license is prohibited from doing pursuant to Title 12, MRSA § 6406.
The Court does not agree. The license requirement of Section 6702 applies to a person
who desires to use a boat for dragging scallops, and that person who possesses the license
must be on the scallop dragging boat unle::ss one of the exemptions of subsection 2-A
apply. A violation of Se::ction 6702 results in a civil offense with a fine imposed on the
person who held the license, not the crewmembers on board the boat. A stem man on a
scallop boat does not need a license. A stern man is not the person who can be fined for a
Section 6702 violation.
The charge brought against the Defendant in this case requires the State prove beyond a
reasonable doubt that he "engaged in a licensed activity." Section 6406 (l)(A). The
statute needs to be given a strict interpretation. As being a stem man does not require a
license, the State has not proven that the Defendant engaged in a licensed activity.
2
Although the State did not charge the Defendant with a violation of Section 6406 (l)(E),
that statute perhaps describes the offense the Defendant may have committed. Section
6406(l)(E) states it is unlawful for any person whose license is suspended to .... assist any
license holder as a crew member in any activity authorized by the suspended license.
Section 6406(1 )(E) makes it unlawful for a person whose license is suspended to assist
any license holder as a crew member, but only in any activity authorized by the
suspended license. Section 6406(l)(E) as written is intended to prohibit individuals with
a suspended license for a particular activity from "backdooring" or avoiding their
suspension by working as a crew member for another license holder in the same field as
that which a person is suspended from. But again, the prohibition from working as a crew
member does not apply broadly to all types of licensed activities; it is applicable only to
the activity authorized by the suspended license. In this ca-;e, the parties stipulated that it
was Defendant's shellfish license that was under suspension. The evidence does include
Exhibit 1, the Certificate of Authenticity, that indicates all license were under suspension,
but lhe record is void as to whether the Defendant was properly on notice that all licenses
were suspended. The Defendant only acknowledged his shellfish(clamming) license had
been suspended. But more importantly, the Defendant was not charged with a Section
6406(1 )(E) violation of assisling a license holder as a crew member in any activity
authori:r.cd by the suspended license. I-l e was charged with a Section 6406(1 )(A) violation
of engaging in a licensed activity while under suspension. 3
In summary, the Court linds that the Stale has not proven heyond a reasonable doubt that
the Defendant is guilty of engaging in a licensed activity while under suspension; the
Defendant is found not guilty.
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Dated: May&,20 I 7
3
Rule 3 of the Maine Rules of Unified Criminal Procedure require the complaint be a
plain, concise, and definite written statement of the essential facts constituting the crime
charged. It is well established rule that the charging instrument must set oul on its face
every essential element or the crime charged. State v. SLanley, 11 S A.3d 1236, 123 7 (Mc.
20 l 5). The elements of a Section 6406 (1 )(a) violation are significantly different from the
elements of a Section 6406( l )(E) violation, the former having as an element engaJ{inR in
a licensed activity while the latter has as elements assisLing a license holder as a crew
member in an activity authorized by the suspended license.
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