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post #23 of Old 02-09-2009
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try this atty. she seems to be knowledgable on this topic.
Subject: Stuart anchoring victory
Cruising News: I am the attorney who prosecuted the Stuart case. I'll send the article I wrote regarding the case in a separate email when you respond to this. There are significant differences between the Stuart and Marco case. Attached are the details in the article I wrote for BoatUS magazine. I filed a federal civil rights law suit, Marco went the county court route. A federal civil rights suit is expensive for a city to defend, the judges are more knowledgeable on maritime law, and the civil rights action yields rights to attorney fees and damages for the successful plaintiff. I got fast results with this suit: filed in March, settlement in May.
Barb Cook

After two defeats, the third time was a win for local boater Vincent Sibilla, who was cited in January, 2008, by the city of Stuart, Florida, for violations of its anchoring ordinances. Sibilla ran afoul of the law by anchoring his vessel, the "Katie J", continuously for more than 10 days in the Okeechobee Waterway within city limits. The Stuart ordinance, enacted in 2003, provided that "it shall be unlawful for any person to anchor or leave at anchor in the navigable waters of the city a nonliveaboard vessel that is no longer exercising the rights of navigation." The ordinance further provides that a vessel "continuously anchored for more than ten consecutive days is presumptively no longer exercising the rights of navigation." Violation of the ordinance is classified as a criminal misdemeanor punishable by a fine up to $500 or imprisonment up to 60 days or both, with each day of violation constituting a separate offense.
In his previous unsuccessful run-ins with the city over its anchoring ordinances, Mr. Sibilla was represented by public defenders unfamiliar with maritime law. This time Mr. Sibilla hooked up with Stuart law firm Guy Yudin & Foster, LLP, with the litigation led by long-time cruiser and maritime attorney Barbara Cook. Ms. Cook agreed to represent Sibilla pro bono. According to Ms. Cook, "This ordinance clearly violated federal and state law, not only with respect to the definition of a vessel "in navigation", but also with respect to prohibited local government regulation of the Okeechobee Waterway, with respect to imposition of prohibited criminal and excessive sanctions for violation, and with respect to city procedures to adjudicate violations."
Mr. Sibilla may not have much money, but he had a nice recreational boat which he anchored in the Okeechobee Waterway within the city limits, not interfering with navigation, outside the city’s mooring field, for more than 10 days at a time. He was cited with a criminal misdemeanor, ordered to appear before a city magistrate, faced jail time and excessive fines, all of which violate state law.
Florida Statute section 327.60, amended for clarification in 2006, specifies in its two sections what is impermissible boating regulation on a local level. The first section provides that local governments may not adopt any ordinance or local law relating to operation and equipment of vessels applicable to the Florida Intracoastal Waterway1 and only when not in conflict with other sections of Chapter 327. The second section prohibits local governmental authorities from regulating anchoring outside of mooring fields of non-live-aboard vessels in navigation. Another applicable section of Chapter 327 is section 327.73(2)(k), which specifies that violations relating to restricted areas and speed limits established by local governmental authorities pursuant to section 327.60 are noncriminal infractions and states "Any person cited for a violation of any such provision shall be deemed to be charged with a noncriminal infraction, shall be cited for such an infraction, and shall be cited to appear before the county court. The civil penalty for any such infraction is $50, except as otherwise provided in this section. ... Any person charged with a noncriminal infraction under this section may pay the civil penalty, either by mail or in person, within 30 days of the date of receiving the citation ... " In accordance with section 327.74, regarding uniform boating citations, " the (Fish and Wildlife Conservation) commission shall prepare, and supply to every law enforcement agency in this state which enforces the laws of this state regulating the operation of vessels, an appropriate form boating citation containing a notice to appear (which shall be issued in prenumbered books with citations in quintuplicate) and meeting the requirements of this chapter or any laws of this state regulating boating, which form shall be consistent with the state's county court rules and the procedures established by the commission."
Regarding what constitutes a vessel "in navigation", the U.S. Supreme court in a 2005 decision, Stewart v. Dutra2, clearly stated that a vessel, once launched and placed in navigation, remains "in navigation" as long as it is "used, or capable of being used for maritime transportation on water...." The Supreme court stated that "... "in navigation" ... is an element of the vessel status of a water craft. It is relevant to whether the craft is "used, or capable of being used" for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use ‘as a means of transportation on water’ is a practical possibility or merely a theoretical one." Ms. Cook said that all of the firm’s lawyers united to develop a litigation strategy which would make the city swiftly recognize the seriousness of its errors. As a result, Ms. Cook filed a federal civil rights lawsuit alleging violation of Mr. Sibilla’s federal substantive and procedural due process rights, abuse of process, and malicious prosecution, and sought an immediate injunction and declaration by the district court for the Southern District of Florida as to Sibilla’s civil rights. The civil rights violations and other allegations, if proven, merit award of attorney fees and damages for Sibilla. If an immediate injunction was not obtained, Sibilla faced a city trial and potential incarceration well before the federal court could rule on the allegations in the federal suit. "When the city attorneys and commissioners received my emailed complaint and motion for injunction, they quickly realized that defending the federal suit would be costly for the city and initiated settlement discussions. Although it took awhile to educate the city as to the law, we prevailed and settled the suit on May 16. In the settlement, the city agreed to suspend enforcement of the ordinance until revised to comport with state and federal maritime law, including the definition of "in navigation" and the extent of the Okeechobee Waterway, to provide adequate in-service training to its law enforcement personnel regarding applicable law and procedures, and to apologize to Mr. Sibilla. The city also paid a token amount of attorney fees and damages to Sibilla to settle the suit. In their letter of apology, the city thanked Sibilla and our law firm for our time and any inconvenience and in helping insure that boating activities can be enjoyed in Stuart."

In conclusion, non-liveaboard3 cruising boats can now anchor in Stuart municipal waters as long as they anchor outside the mooring field.

1 Florida Administrative Code 68D-23.103(k)(2) defines the Florida Intracoastal Waterway as including "all waters from shoreline to shoreline within the Okeechobee Waterway, Stuart to Fort Myers"

2 Stewart v. Dutra Const. Co., 543 U.S. 481 (2005)

3 Florida Statute 327.02(17) "Live-aboard vessel" means: (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.

Barbara Cook, Esq., Board Certified Admiralty and Maritime Law
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