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Cruisers Contest Anchoring Limits

BoatUS Magazine - March 2007
In a state where boating generates $18 billion for the state's economy — more than the citrus industry — the anchoring of transient recreational boats in Florida has been a hot-button issue. In January, local boaters bristling under an overly restrictive local ordinance turned up the heat and staged a "boat-in" to challenge one town's anchoring law.

BoatU.S. member Dave Dumas, a resident of Marco Island and an experienced long distance cruiser, anchored his boat, a 42-foot Krogen, for nearly two days in a popular anchorage, drawing the attention of the media, boating groups and, naturally, the local police. Dumas was given a warning and then issued a ticket for exceeding the town's 12-hour time limit for anchoring within 300 feet of a seawall, a misdemeanor. He was ordered to appear in Collier County Court Feb. 15. Facing a $500 fine and/or six months in jail, why did he do it?

"I saw what was happening — cruising people coming here and actually getting harassed by police under the guise of explaining the ordinance — and I decided we've got to do something," Dumas explained. He added that normally the town welcomes visitors by car and he, and other Marco Island boaters, felt it was wrong to single out boaters with a host of waterway restrictions and orders to "move on" by police. Marco Island sets a 72-hour anchoring limit; after that you need to apply for a permit.

Dumas has cruised up and down the East Coast, to the Bahamas and Mexico and said he's never been in an area where the police ask you to leave.

What he and boating groups in Florida would like to see is a decision by the courts to strike down such local restrictions based on a new law that went into effect last July which now prohibits regulation by local towns or counties in Florida of "non-liveaboard" boats "in navigation" that are not anchored in a designated mooring field (see definitions below).

The amendment to state law was part of a larger hurricane bill pushed through the state house last year by BoatU.S., Marine Industries Association of Florida and National Marine Manufacturers Association. The goal was to clarify how far local laws can go and prevent a further erosion of waterway access in the nation's number one boating state.

Some say the legislation was passed in response to a City of Miami Beach ordinance approved last year prohibiting boaters from anchoring for more than seven days, a move which no doubt found favor with landowners who did not want their views of the waterways obstructed.

Many cruisers were alarmed by the Miami ordinance due to the fact that South Florida is a major departure point for offshore voyages to the Bahamas and the Caribbean, a place where a limit of seven days is clearly not enough to wait out weather, provision your boat and get ready for a major trip. The same holds true of Marco Island on Florida's west coast, as it features the last protected harbor before one leaves on an 80-mile open ocean crossing south to Key West. The 2005 town ordinance set a host of limits by time and distance from a manmade structure, plus a requirement to prove that your holding tank had been pumped out after a stay of three days.

After a contentious debate Miami Beach ignored the concerns of the boating community and moved ahead with a seven-day limit, despite strenuous objections from boating groups including BoatU.S., the National Marine Manufacturers Association and Seven Seas Cruising Association. Like Marco Island, the city primarily enforces its rules by threat, not actual citations. Marco Island police told one group of cruisers on a weekend rendezvous they would conduct frequent safety boardings if they stayed overnight in Factory Bay, a popular anchorage.

Now that the Florida Legislature has stepped in, will towns back off since many of their local ordinances are now in conflict with the new state law?

If you are an optimist, the new state law will put local communities on notice that there are limits to regulating transient boaters. If you are a pessimist, nothing will change and cruising boaters will continue losing access to many of the Sunshine State 's sheltered waterways and harbors.

In Miami Beach, the city attorney's office said they have no plans to change anything and stand by their ordinance that a boater is "not in navigation" after seven days. "Any changes to state law that occurred in 2006 … have not registered here," said a boating advocate in Miami Beach.

In the meantime, Dumas' citation may shape up to be just what boating advocates in Florida have been waiting for: a test case. The Sailing Association of Marco Island and Florida's Standing Watch coalition are supporting Dumas and he also has an experienced defense attorney to represent him.

David Dickerson, director of state government affairs for NMMA, agreed that what has to happen next is for municipalities to change their laws so they are not in conflict with the state statute or for a city's enforcement to be challenged in court and for an anchoring decision to be appealed and upheld "so that the decision carries statewide," he said.

State Perspective

In many states, localities cannot pass any regulations for boats without the approval of the state boating office. Florida is not such a state and has a strong home rule tradition of governance that limits any control the state boating office has over matters such as the enforcement of local laws.

"There are anchoring ordinances that have been around forever and the majority of them are not being enforced. The law enforcement people know their ordinances are invalid," said Jim Brown, deputy director of enforcement for the waterways division of Florida Fish and Wildlife Conservation Commission (FWC).

Because of home rule, Brown said there is not much the state can do to bring municipalities in line, "unless they're asking for permits to put up waterway markers or install mooring fields." Signage on waterways and mooring fields requires FWC permits, two areas where the state does hold sway. In addition, state law also prohibits municipalities from regulating boats on the Florida Intracoastal Waterway.

Brown added that the state is very concerned about the worsening problem of loss of access due to waterfront development. The loss of access spills over into problems with long-term storage of boats at anchor and derelict boats, which FWC fears will get worse.

FWC is planning a series of outreach workshops around the state, the first possibly being set in the Florida Keys where anchoring, liveaboards, derelict boats and hurricanes form a "perfect storm" of conflicts for towns and boaters. Brown said at any given time there are 300-400 derelict boats on record in the Keys. Unfortunately for law-abiding cruising boaters, they are "greeted" by some towns as a problem waiting to happen rather than as tourists with money to spend.

"Municipalities can't do anything that's in conflict with state law but they can regulate liveaboards and boats in a mooring field," Brown said. "We'd like to set some parameters to give local governments some way to deal with boats, as they do have authority to control their local waters."

One potential solution would be a statewide model anchoring ordinance. "By the state setting those parameters it would stave off the cities making up their own regulations," Brown said. A similar measure worked well to control boat noise as cities were compelled by state law to use the state's model noise ordinance. New legislation would be needed to establish a model ordinance and mandate its use by cities.

Murky Legal Waters
The optimists among boaters say the change in state law on anchoring has "tipped the balance" of rights back in favor of the boating public — but claims of victory may ring hollow for transients from out of state who are asked to "move on".

Prior to the 2006 legislation, two different Florida courts did rule on anchoring ordinance challenges by boaters — one ruled in favor of the boater (State v. Frick) and one ruled in favor of the city of Clearwater (State v. Hager). Both involved 72-hour limits for anchoring. A 1994 lawsuit by boaters in Hawaii argued that state restrictions were in conflict with federal supremacy over navigable waterways. The case went as far as a federal appellate court (Barber v. State of Hawaii) but the ruling was in favor of the state regulations. Generally, the federal government will not invoke its legal supremacy over waterways unless commercial shipping or channels are being impeded.

"Everyone knows that what the law says and what the law means are different things and only a court can decide what the law means," said the Miami Beach boater. "Until that happens, no one can be entirely sure about one's rights."

The Devil In the Details By Elaine Dickinson © BoatUS Magazine March 2007