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This information was originally printed in the November 2006 issue.
Editorial:
New Law Protects Cruisers’ Anchoring Rights in Florida
(New added words are underlined and old deleted words are in red and parenthesis)
For the online Florida statute, go to http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0327/Sec60.HTM.
A new law went into effect on July 1 that protects anchoring rights in Florida. We reported on some aspects of the law in the August issue about rules changing on derelict vessels marinas, but wording changes in the same law were also made that protect anchoring rights. Here are the significant changes (underline and strikethroughs are the changes) of the 2006-309 amendments to chapter 327.60:
“Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions or of any vessels within the marked boundaries of mooring fields permitted as provided in s. 327.40. However, local governmental authorities are prohibited from regulating the anchoring outside of such mooring fields (deleted: "anchorage") of non-live-aboard vessels (deleted: "engaged in the exercise of rights of") in navigation.”
In simple wording, this means that communities cannot restrict anchoring rights of non-liveaboard boaters outside mooring fields. This means people cruising, whether on their way somewhere or just gunkholing around. The essence of this revolves around who is a non-liveaboard, and who isn’t. Statute 327.02 paragraph (17) of the Florida Statutes defines “liveaboard vessel” (fishing vessels are excluded):
(a) Any vessel used solely as a residence; OR
(b) Any vessel represented as a place of business, a professional or other commercial
enterprise, or a legal residence.
One maritime attorney suggested liveaboards call themselves “full-time cruisers”—to place the burden on the local community to prove who is and isn’t a liveaboard. This is not just semantics, as a fine line often exists between who is a cruiser and who is a liveaboard.
If there is anyone who has brought about this change it is the National Marine Manufacturers Association (NMMA) and the Seven Seas Cruising Association (SSCA). We can also thank the city of Miami Beach. After they enacted anchoring restrictions last spring, the NMMA, prompted greatly by the actions of the SSCA and the boating community, acted to get this into law. Some say Miami Beach took away anchoring rights that were already protected, and this new law only helped define that protection.
The impact this has on places like Miami Beach and Marco Island is significant, and the NMMA is asking boaters to contact them to let them know about infractions by these cities and other communities that restrict their anchoring rights. They have published a letter written by attorneys for the NMMA which will be sent to any offending communities if boaters so inform them (see below on this Web page to read this letter and for the NMMA contact information.)
The boating community can thank the NMMA and the SSCA and all those boaters who wrote letters and expressed their opposition to recent communities’ restrictions on anchoring rights. This is a major step in the protection of these rights in Florida—rights that have dwindled in recent years. Someone even spoke of this being a turnaround and predicted that in a few years boaters would once again be welcome in Florida’s waterfront communities.
Let’s continue to work towards making that happen.
Steve Morrell
Editor
_________________________________________________________________________________________
New Florida Law Lifting Anchoring Restrictions
David Dickerson, NMMA’s director of state government relations, stated that (taken from the Seven Seas Cruising Association Web site (www.ssca.org), “NMMA will be glad to begin the process of alerting officials of the new law, but needs to know which cities are actively enforcing anchorage restrictions.”
The SSCA and NMMA are requesting that cruisers notify Dickerson if they find that local communities are “asking” them to “move along” while navigating in Florida waters. He can be contacted at ddickerson@nmma.org, or at (202) 737-9761.
Below is the letter the NMMA attorneys will send out to any offending municipalities. (Those items in brackets are to be inserted by the sender of the letter to describe or address the individual city or county’s situation.)
Dear [City / County Attorney],
Our firm represents the National Marine Manufacturers Association (NMMA). NMMA is the
nation’s largest recreational marine industry association, representing over 1,600 boat builders, engine manufacturers, and marine accessory manufacturers. NMMA members collectively produce more than 80 percent of all recreational marine products made in the United States. Recreational boating is a popular American pastime, with almost 71 million boaters nationwide and over 13 million registered boats. In 2004, Florida ranked as the top state for boat registrations with over 946,000 boats registered. The recreational boating industry is a substantial contributor to the nation’s economy with expenditures on recreational marine products and services of over $37 billion in 2005 alone. In addition, the Florida Legislature recently determined that the annual economic impact of boating on the state of Florida was $14 billion.
Several boating advocates have called to our attention your ordinance related to [insert ordinance description and citation]. Because of a 2006 amendment to the Florida Statutes by the adoption of chapter 2006-309, Laws of Florida, we believe your ordinance is likely inconsistent with Florida law effective July 1, 2006. Chapter 2006-309 amends chapter 327.60, Florida Statutes, as follows:
(2) Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions or of any vessels within the marked boundaries of mooring fields permitted as provided in s. 327.40. However, local governmental authorities are prohibited from regulating the anchoring outside of such mooring fields (deleteed: "anchorage") of non-live-aboard vessels (deleted: "engaged in the exercise of rights of") in navigation. [1]
Pursuant to this statutory amendment, a local government’s anchoring ordinance may apply to any vessels anchored in a mooring field; however, outside of mooring fields, an anchoring ordinance may only apply to floating structures[2] or live-aboard vessels.[3] Prior to the new legislative change, the law required non-live-aboard vessels to be “engaged in the exercise of rights of navigation” to fall outside of a local government’s right to regulate its anchoring. This new law, however, prohibits a local government from enacting or enforcing an anchoring ordinance against any vessel which is not being used as a live-aboard residence outside of a mooring field.
The issue of whether a vessel is a live-aboard or non-live-aboard vessel is a question of fact relating to the boater’s intent; the size or type of vessel is irrelevant. Even a yacht with a full kitchen and sleeping quarters fails to qualify as a live-aboard vessel if the boater does not intend to reside in the vessel for an “unlimited time” or use the vessel “solely as a residence.” See footnote 2, infra. The law requires “positive or presumptive proof” of the vessel owner’s intention to remain in the vessel “for unlimited time” in order for it to qualify as a legal residence. Miller v. Gross, 788 So.2d 256, 259 (Fla. 4th DCA 2000). Any ordinance that seeks to regulate the anchoring of a vessel outside of a mooring field cannot extend to such vessels.
In sum, the recent legislative amendment prohibits local governments from regulating the anchoring of a vessel outside of a mooring field, unless it is a live-aboard vessel or a floating structure. The [City of / County] ordinance apparently does not comply with this statute because [briefly describe why it does not comply using the ordinance language].
Therefore, we request that you review your local anchoring ordinance and determine if you agree with NMMA that it does not comply with chapter 327.60, Florida Statutes, amended by chapter 2006-309, Laws of Florida. We believe that your anchoring ordinance regulates non-live-aboard vessels in a manner that is not allowed by the newly amended statute, and the ordinance thus needs to be amended.
Sincerely,
Wade Hopping, Esq.
David Childs, Esq.
Hopping Green & Sams
On behalf of the National Marine Manufacturers Association
FOOTNOTES:
[1] Underlined and strike-through (on this web site, deleted words are in red and in parenthesis) language represents the chapter 2006-309 amendments to chapter 327.60.
[2] Chapter 327.02(10), Florida Statutes, defines a “floating structure” as a “floating entity, with or without accommodations built thereon, which is not primarily used as a means of transportation on water but which serves purposes or provides services typically associated with a structure or other improvement to real property.”
[3] Chapter 327.02(16), Florida Statutes, narrowly defines “live-aboard vessel” as “any vessel used solely as a residence;” or “any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence.” In Florida, “[a] legal residence is the place where a person has a fixed abode with the present intention of making it their permanent home.” Perez v. Marti, 770 So.2d 284, 289 (Fla. 3d DCA 2000).
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