The Florida Fish and Wildlife Conservation Commission is awaiting a court decision that could affect the Boca Grande Community Panel’s efforts to control “live-aboard” boats in the Boca Grande Bayou.
Community planning panel members have voiced concerns about live-aboard boaters and abandoned vessels at recent meetings, and have discussed possible ways to regulate surrounding waters, including looking to the Fort Myers Beach mooring field as a potential model for Boca Grande.
Current Panel Chairman Lynne Seibert as well as Bayne Stevenson, the former chairman, have also discussed that Sarasota’s decision to turn Marina Jack’s, a popular live-aboard spot, into a mooring field might affect Boca Grande adversely, by possibly springing up a new population of boats in the bayou.
Major Paul Ouellette, boating safety coordinator for the FWC, said that his agency is closely watching a decision in a Marco Island case that revolves around the FWC’s ability to “second guess” a legislatively-ordained body … the Marco Island City Council. The council is the agency that placed what Ouellette calls an “illegal restriction” on its surrounding waters. This decision will affect many municipalities around Florida that have put restrictions on their surrounding waters.
On May 1, 2006, the Marco Island City Council passed a “waterways ordinance” that limits anchoring of vessels to 72 hours and 300 feet from any manmade structure or shoreline. Many boaters were driven out of several popular live-aboard spots through this decision that prohibits anchoring in Marco Island waters. Several boaters are fighting the ordinance.
Ouellette said that aside from establishing a mooring field, there are two ways that local governments can control state waters.
“There are certain criteria needed to regulate the waters of the state,” he said. “One is to regulate the waters for boating safety purposes, the other is manatee protection purposes. You have to prove these criteria to the state. Marco Island was going with a boating safety purpose, and we’re checking to see whether that criteria was met.”
Ouellette said that the case could determine whether or not an agency, such as the FWC, should be looking at each application and justifying whether it is valid or not.
Boating safety has not arisen as an issue to date with the Boca Grande panel.
Ouellette said that many local governments have attempted to regulate areas outside a marked mooring field.
State law, he says, “provides local governmental authorities availability to regulate anchorage of non-live-aboard vessels within the legally established mooring fields.” What we’re seeing out there is local governments going outside of that provision. In other words, they’re not only telling folks where and how to anchor, they are enacting regulations providing timelines outside those mooring fields. That’s the question at hand. This agency contends that local agencies do not have the authority to regulate vessels exercising their navigation rights outside of the mooring field.”
Ouellette said the FWC is currently involved in a two-year analysis of the boating laws.
“We’re going to see if we can make some changes in plain English so folks who make the decisions at local levels can understand them more clearly,” he said. “We want to help those local agencies do what they need to do within the authority of the law. We’re shooting hopefully for 2009 with recommendations to the legislature.”
David Dickerson, the state government relations manager for the National Marine Manufacturers Association, said his office has received more than 200 emails and a vast amount of other correspondence in the last two years from boaters who have been told to hoist their anchors in state waters by local law enforcement agencies, even after producing a written copy of the Florida statute that took effect July 1, 2006.
The statute states “nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment of 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 … however, local governmental authorities are prohibited from regulating the anchoring outside of such mooring fields of non-live-aboard vessels in navigation.”
“When I talk to Congress, they say they get calls on this every week,” Dickerson said. “I can’t understand why the counties can’t see the law clearly. It’s a consistent story from any number of towns – Miami, Sarasota, Jacksonville, Clearwater … laws are made that are illegal.”
One full-time cruiser who is no stranger to the Bayou but wishes to remain anonymous said that he has been hassled more than once by local law enforcement agencies … but not in the Bayou.
“It is very clear and simple,” the boater said. “What counties fail to understand is that they’re not looking at the statutes and reading them. Navigation rights have been around for years.”
The boater also said it would not be easy to create a mooring field in Boca Grande’s Bayou.
“If they decide to build a mooring field they can control it,” he said. “It would be hard to establish one there, it would probably impede navigation through the Bayou. I was there at the Gasparilla Inn for Thanksgiving, and there were a lot of boaters there creating revenue for the island. There may be a few people who live on boats that make things look bad for others …”
He continued, “but when you start looking at vessels that are $50,000, $60,000, $70,000, these people are professionals. They can’t be considered ‘bums’ or ‘derelicts.’ “
At a meeting of the community panel in December, Siebert said that live-aboard boaters were “ne’er-do-wells” and “bums.” Siebert later stated that the comment was taken out of context, and that she was referring only to certain Sarasota County boaters.
Dickerson agreed that there was a certain element of live-aboard boating and waters containing abandoned vessels that vagrants had been known to live in.
“I understand the need that some local agencies feel to regulate the waters,” he said. “The city of Sarasota has had some problems, but the ability of boaters to use state and federal waters to anchor should never be run roughshod over. On the other hand, the availability of mooring fields with a reasonable price can be a benefit. It can allow you to put more boats in an area, and those boaters eat at restaurants and use facilities. Not many are totally self-contained. They can be a benefit to the community.”
Dickerson also expressed concern over the recent revision of a study that was commissioned from the University of Florida by the state. With so much confusion at local and county levels regarding these laws, there is a possibility the state will change the laws.
“The study is a legal review of the state’s law and how it has been used at local levels, and what the state’s options are,” he said. “There are meetings going on right now. It troubles me that this review is under way, instead of looking at the current law and enforcing it. Now there is a study exploring options … I don’t like to see that.”
Dickerson is well-known to many on the cruising circuit as the man who for years would write individual letters for boaters to carry and display to law enforcement agencies when they were told to leave an area in state waters.
“I did some personal letters, but this has spun out of control as far as the workload,” he said. “I’ve had so many people contact me consistently. I’ll be honest, though, we’ve had so little response from what we did send out, it was as if I never mailed them.”
Dickerson then started writing the letters to each city or town that violated the law at boaters’ request, but even that became too overwhelming.
“I couldn’t take on each municipality, so in a prudent action I decided to work at a state level,” he said. “So we’ll go from there.”
From his letters,
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.”
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.” 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.
As one local boater noted, “all I say is I’m not a live-aboarder, I’m a full-time cruiser.”
