UPDATE - Stuart Anchoring Victory Florida
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.
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
GUY, YUDIN, & FOSTER, LLP
Well, at least we know who to call for maritime legal procedings in the state of Florida.
Thanks for the followup Freesail, good to know boaters still have rights, and people that know how to ensure them.
Excellent Free! Thanks...:D
Very good post Free... :)
Once again we find tax payers subsidizing a lawyers income. It was probably a lawyer who wrote the code and another lawyer who used it to fill his pockets with cash.
The real issue here, that was probably the main reason the code was created to begin with, is the severe problem of derelict vessels we have in Florida. Someone tried to create a code that would address the problem and still protect the rights of everyone. Unfortunately everyone looses when you try to write compromise legislation (based on protecting your ability to get reelected by not offending some nitch of voters).
In my opinion any vessel anchored in these types of areas not expressly designated for long term anchorage for more than a couple of weeks should be considered derelict and be subject to impounding, retitling and sold to fund the clean up of derelict vessels through out the state. It has become a real navigation hazard and eye sore for everyone. We do not allow people to park their motor homes in the emergency lane on I-95 or even at the rest areas for any extended period. It's simple common sense, something that appears to be a lost trait in today's world.
If they are not anchored in a channel, then the analogy of parking in the emergency lane of I-95 falls apart. It would be more like them being parked in a rest area parking lot. Not the same thing at all. And, yes, I've seen vehicles parked in a rest area for more than a day. If they've got a good reason, the cops let them do it.
This is good new!
"is the severe problem of derelict vessels we have in Florida"
agreed, but I've inquired about some of the same.
You would be amazed at the abject lack of knowledge of various departments who all claim to either "be in charge" of these vessels, or have even a modicum of a clue as to what paperwork is needed, required, supplied, wiped with pertaining to the salvage rights and or disposal of these vessels.
I have personally spent over 2 days straight waiting in various offices, (forget phone calls) being jacked from one official to another, only to be told that not only do they don't have a clue, they have no idea as to which 7-11 sells these clues.
I have taken the stance with some of the F&G folks, as well as the dept. of hemp undies fella's that upon my first encounter with a human with a pulse, my very first question is....
"you got a boss?" "I'll wait for 'em". and still, nada.
From city, to county, to state, to even the USCG (who reports said tubs to the state), who reports 'em to F&G, who reports 'em to state police, county police, local police and I think the local garden club, that nothing happens because nobody has a nickel in the game. I give up.
My friend here on the Little Magothy River watched the DNR come by and refloat a deserted boat that broke free of it's anchor and sank. Upon raising said boat from the water they dove in, checked for bodies or evidence of foul play, then let it sink back down where it was.
Seems clearing sunken boats is the owners responsibility, and since no one knew who the owner was there it sat. My friend called 7 on your side (local news) who then did the investigative report thing we all love so much.
Two phone calls and one day later the boat was refloated and towed off by DNR.
Squeaky wheels get oil.
If a boats been deserted DNR (or the local version in FL) can put a sticker on a boat with a 30 day call back warning. Then impound the boat for 60 days (charging fair rate per day if the owner wants to recover), after which they can auction the boat off for salvage.
They could even have the tow companies do the service for free.
Self funded clean water, what an idea :)
People that don't visit their floating ping pong balls for more than 30 days deserve to have them impounded.
Nasty, but it does not impose on our legal right to navigate as we see fit, not as some city council member who doesn't like his view of his waterfront spoiled sees the law.
Did you read the original posting?
"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"
This has never been about derelict boats. There are plenty of means to deal with derelict boats. This is about wanting to force cruisers into controlled environments where fees can be charged. Anchoring is FREE, how dare they! They're blocking MY view of the water, the nerve. I pay lots of taxes for that view and they aren't paying anything, the bums!
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