Florida Senate - 2020                             CS for SB 1378
       
       
        
       By the Committee on Environment and Natural Resources; and
       Senator Rouson
       
       
       
       
       592-03422-20                                          20201378c1
    1                        A bill to be entitled                      
    2         An act relating to vessels; creating s. 327.332, F.S.;
    3         specifying the conditions under which a vessel is and
    4         is not considered to be operating at slow speed,
    5         minimum wake; prohibiting the operation of vessels at
    6         speeds faster than slow speed, minimum wake in certain
    7         emergency and hazardous situations; providing
    8         requirements for flags displayed from vessels and
    9         barges actively engaged in construction operations;
   10         providing civil penalties; providing applicability;
   11         amending s. 327.4107, F.S.; prohibiting certain
   12         parties within certain waterbodies from anchoring or
   13         mooring a vessel within a specified distance of a
   14         mangrove or to upland vegetation upon public lands;
   15         providing civil penalties; authorizing certain
   16         individuals to relocate or cause to be relocated
   17         certain vessels; providing liability protection for
   18         the individuals under certain circumstances; providing
   19         that penalties are assessed in addition to other
   20         available penalties; amending s. 327.73, F.S.;
   21         revising civil penalties relating to certain at-risk
   22         vessels and prohibited anchoring or mooring; requiring
   23         a vessel to be declared a public nuisance and subject
   24         to certain provisions after a specified number of
   25         violations within a specified timeframe; providing
   26         civil penalties relating to vessels that fail to
   27         reduce speed for special hazards and the display of
   28         specified flags by construction vessels or barges not
   29         actively engaged in construction operations; providing
   30         civil penalties relating to vessels at risk of
   31         becoming derelict and anchored within a specified
   32         distance of a mangrove or to vegetation upon public
   33         grounds; amending s. 705.103, F.S.; providing
   34         procedures for abandoned or lost property relating to
   35         certain vessels; providing notice and hearing
   36         requirements; providing an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Section 327.332, Florida Statutes, is created to
   41  read:
   42         327.332Special hazards.—
   43         (1)For purposes of this section, a vessel:
   44         (a)Is operating at slow speed, minimum wake only if it is:
   45         1.Fully off plane and completely settled into the water;
   46  and
   47         2.Proceeding without wake or with minimum wake.
   48  
   49  A vessel that is operating at slow speed, minimum wake may not
   50  proceed at a speed greater than a speed that is reasonable and
   51  prudent to avoid the creation of an excessive wake or other
   52  hazardous condition under the existing circumstances.
   53         (b)Is not proceeding at slow speed, minimum wake if it is:
   54         1.Operating on plane;
   55         2.In the process of coming off plane and settling into the
   56  water or getting on plane; or
   57         3.Operating at a speed that creates a wake which
   58  unreasonably or unnecessarily endangers other vessels.
   59         (2)A person may not operate a vessel faster than slow
   60  speed, minimum wake upon approaching within 300 feet of any
   61  emergency vessel, including, but not limited to, a law
   62  enforcement vessel, United States Coast Guard vessel, or
   63  firefighting vessel, when such emergency vessel has its
   64  emergency lights activated.
   65         (3)(a)A person may not operate a vessel faster than slow
   66  speed, minimum wake upon approaching within 300 feet of any
   67  construction vessel or barge when the vessel or barge is
   68  displaying an orange flag from a pole extending:
   69         1.At least 10 feet above the tallest portion of the vessel
   70  or barge, indicating that the vessel or barge is actively
   71  engaged in construction operations; or
   72         2.At least 5 feet above any superstructure permanently
   73  installed upon the vessel or barge, indicating that the vessel
   74  or barge is actively engaged in construction operations.
   75         (b)A flag displayed on a vessel or barge pursuant to this
   76  subsection must:
   77         1.Be at least 2 feet by 3 feet in size;
   78         2.Have a wire or other stiffener or be otherwise
   79  constructed to ensure that the flag remains fully unfurled and
   80  extended in the absence of a wind or breeze; and
   81         3.Be displayed so that the visibility of the flag is not
   82  obscured in any direction.
   83         (c)In periods of low visibility, including any time
   84  between the hours from 30 minutes after sunset and 30 minutes
   85  before sunrise, a person may not be cited for a violation of
   86  this subsection unless the orange flag is illuminated and
   87  visible from a distance of at least 2 nautical miles.
   88         (4)(a)A person operating a vessel in violation of this
   89  section commits a noncriminal infraction, punishable as provided
   90  in s. 327.73.
   91         (b)The owner of, or party who is responsible for, a
   92  construction vessel or barge who displays an orange flag on the
   93  vessel or barge when it is not actively engaged in construction
   94  operations commits a noncriminal infraction, punishable as
   95  provided in s. 327.73.
   96         (5)The speed and penalty provisions of this section do not
   97  apply to a law enforcement, firefighting, or rescue vessel that
   98  is owned or operated by a governmental entity.
   99         Section 2. Present subsections (4) and (5) of section
  100  327.4107, Florida Statutes, are redesignated as subsections (5)
  101  and (6), respectively, a new subsection (4) is added to that
  102  section, and present subsection (4) is amended, to read:
  103         327.4107 Vessels at risk of becoming derelict on waters of
  104  this state.—
  105         (4)(a)Any owner or responsible party who has been issued a
  106  citation for a second violation of this section for the same
  107  vessel may not anchor or moor such vessel or allow the vessel to
  108  remain anchored or moored within 20 feet of a mangrove or to
  109  upland vegetation upon public lands. This distance shall be
  110  measured in a straight line from the point of the vessel closest
  111  to the outermost branches of the mangrove or vegetation. An
  112  owner or responsible party who violates this subsection commits
  113  a noncriminal infraction, punishable as provided in s. 327.73.
  114         (b)The commission, officers of the commission, and any law
  115  enforcement agency or officer specified in s. 327.70 are
  116  authorized and empowered to relocate or cause to be relocated an
  117  at-risk vessel found to be in violation of this subsection to a
  118  distance greater than 20 feet from any mangrove or upland
  119  vegetation. The commission, officers of the commission, or any
  120  other law enforcement agency or officer acting under this
  121  subsection to relocate or cause to be relocated an at-risk
  122  vessel, upon state waters, away from mangroves or upland
  123  vegetation shall be held harmless for all damages to the at-risk
  124  vessel resulting from such relocation unless the damage results
  125  from gross negligence or willful misconduct.
  126         (5)(4) The penalties penalty under this section are is in
  127  addition to other penalties provided by law.
  128         Section 3. Paragraphs (aa) and (bb) of subsection (1) of
  129  section 327.73, Florida Statutes, are amended, and paragraphs
  130  (cc), (dd), and (ee) are added to that subsection, to read:
  131         327.73 Noncriminal infractions.—
  132         (1) Violations of the following provisions of the vessel
  133  laws of this state are noncriminal infractions:
  134         (aa) Section 327.4107, relating to vessels at risk of
  135  becoming derelict on waters of this state, for which the civil
  136  penalty is:
  137         1. For a first offense, $100 $50.
  138         2. For a second offense occurring 30 days or more after a
  139  first offense, $250 $100.
  140         3. For a third or subsequent offense occurring 30 days or
  141  more after a previous offense, $500 $250. A vessel that is the
  142  subject of three or more violations issued pursuant to the same
  143  paragraph of s. 327.4107(2) within a 12-month period which
  144  resulted in dispositions other than acquittal or dismissal shall
  145  be declared to be a public nuisance and subject to the abandoned
  146  property provisions specific to derelict vessels in s. 705.103
  147  and the derelict vessel removal and relocation provisions in s.
  148  823.11.
  149         (bb) Section 327.4109, relating to anchoring or mooring in
  150  a prohibited area, for which the penalty is:
  151         1. For a first offense, up to a maximum of $100 $50.
  152         2. For a second offense, up to a maximum of $250 $100.
  153         3. For a third or subsequent offense, up to a maximum of
  154  $500 $250. A vessel that is the subject of three or more
  155  violations of the same subparagraph of s. 327.4109(1)(a) within
  156  a 12-month timeframe which resulted in dispositions other than
  157  acquittal or dismissal shall be declared to be a public nuisance
  158  and subject to the abandoned property provisions specific to
  159  derelict vessels in s. 705.103 and the derelict vessel removal
  160  and relocation provisions in s. 823.11.
  161         (cc)Section 327.332, relating to vessels creating special
  162  hazards, for which the penalty is:
  163         1.For a first offense, $50.
  164         2.For a second offense occurring within 12 months after a
  165  prior offense, $250.
  166         3.For a third offense occurring within 36 months after a
  167  prior offense, $500.
  168         (dd)Section 327.332, relating to the display of an orange
  169  flag on a vessel or barge when the vessel or barge is not
  170  actively engaged in construction operations.
  171         (ee)Section 327.4107(4), relating to vessels at risk of
  172  becoming derelict found to be anchored within 20 feet of a
  173  mangrove or upland vegetation upon public lands, for which the
  174  civil penalty is $250.
  175  
  176  Any person cited for a violation of any provision of this
  177  subsection shall be deemed to be charged with a noncriminal
  178  infraction, shall be cited for such an infraction, and shall be
  179  cited to appear before the county court. The civil penalty for
  180  any such infraction is $50, except as otherwise provided in this
  181  section. Any person who fails to appear or otherwise properly
  182  respond to a uniform boating citation shall, in addition to the
  183  charge relating to the violation of the boating laws of this
  184  state, be charged with the offense of failing to respond to such
  185  citation and, upon conviction, be guilty of a misdemeanor of the
  186  second degree, punishable as provided in s. 775.082 or s.
  187  775.083. A written warning to this effect shall be provided at
  188  the time such uniform boating citation is issued.
  189         Section 4. Subsections (2) and (4) of section 705.103,
  190  Florida Statutes, are amended to read:
  191         705.103 Procedure for abandoned or lost property.—
  192         (2)(a)1. Whenever a law enforcement officer ascertains
  193  that:
  194         a. An article of lost or abandoned property other than a
  195  derelict vessel or vessel declared a public nuisance pursuant to
  196  s. 327.73(1)(aa)3. or s. 327.73(1)(bb)3. is present on public
  197  property and is of such nature that it cannot be easily removed,
  198  the officer shall cause a notice to be placed upon such article
  199  in substantially the following form:
  200  
  201  NOTICE TO THE OWNER AND ALL PERSONS INTERESTED IN THE ATTACHED
  202  PROPERTY. This property, to wit: ...(setting forth brief
  203  description)... is unlawfully upon public property known as
  204  ...(setting forth brief description of location)... and must be
  205  removed within 5 days; otherwise, it will be removed and
  206  disposed of pursuant to chapter 705, Florida Statutes. The owner
  207  will be liable for the costs of removal, storage, and
  208  publication of notice. Dated this: ...(setting forth the date of
  209  posting of notice)..., signed: ...(setting forth name, title,
  210  address, and telephone number of law enforcement officer)....
  211  
  212         b.A derelict vessel or a vessel designated in ss.
  213  327.73(1)(aa)3. and (bb)3. is present on the waters of the
  214  state, the officer shall cause a notice to be placed upon the
  215  vessel in substantially the following form:
  216  
  217  NOTICE TO THE OWNER AND ALL PERSONS INTERESTED IN THE ATTACHED
  218  VESSEL. This vessel, to wit: ...(setting forth brief
  219  description)... is unlawfully upon waters of the state
  220  ...(setting forth brief description of location)... and must be
  221  removed within 21 days; otherwise, it will be removed and
  222  disposed of pursuant to chapter 705, Florida Statutes. The owner
  223  and other interested parties may have the right to a hearing to
  224  challenge the determination that this vessel is derelict or
  225  otherwise in violation of the law. Please contact ... (contact
  226  information for person who can arrange for a hearing in
  227  accordance with this section) .... The owner will be liable for
  228  the costs of removal, storage, and publication of notice if this
  229  vessel is not removed by the owner. Dated this: ... (setting
  230  forth the date of posting of notice) ..., signed: ... (setting
  231  forth name, title, address, and telephone number of law
  232  enforcement officer) ....
  233         2.The notices required under subparagraph 1. may Such
  234  notice shall be not be less than 8 inches by 10 inches and must
  235  shall be sufficiently weatherproof to withstand normal exposure
  236  to the elements. In addition to posting, the law enforcement
  237  officer shall make a reasonable effort to ascertain the name and
  238  address of the owner. If such is reasonably available to the
  239  officer, she or he shall mail a copy of such notice to the owner
  240  on or before the date of posting. If the property is a motor
  241  vehicle as defined in s. 320.01(1) or a vessel as defined in s.
  242  327.02, the law enforcement agency shall contact the Department
  243  of Highway Safety and Motor Vehicles in order to determine the
  244  name and address of the owner and any person who has filed a
  245  lien on the vehicle or vessel as provided in s. 319.27(2) or (3)
  246  or s. 328.15(1). On receipt of this information, the law
  247  enforcement agency shall mail a copy of the notice by certified
  248  mail, return receipt requested, to the owner and to the
  249  lienholder, if any, except that a law enforcement officer who
  250  has issued a citation for a violation of s. 823.11 to the owner
  251  of a derelict vessel is not required to mail a copy of the
  252  notice by certified mail, return receipt requested, to the
  253  owner. For a derelict vessel or a vessel designated in ss.
  254  327.73(1)(aa)3. and (bb)3., the mailed notice shall inform the
  255  owner or responsible party that he or she has a right to a
  256  hearing to dispute the determination that the vessel is derelict
  257  or otherwise in violation of the law. If a request for a hearing
  258  is made, a state agency shall follow the processes set forth in
  259  s. 120.569. Local government entities shall follow the processes
  260  set forth in s. 120.569, with the exception that a local judge,
  261  magistrate, or code enforcement officer may be designated to
  262  conduct such hearings. If, at the end of 5 days, or 21 days for
  263  a derelict vessel or a vessel designated in ss. 327.73(1)(aa)3.
  264  and (bb)3., after posting the notice and mailing such notice, if
  265  required, the owner or any person interested in the lost or
  266  abandoned article or articles described has not removed the
  267  article or articles from public property or shown reasonable
  268  cause for failure to do so, and, in the case of a derelict
  269  vessel or a vessel designated in ss. 327.73(1)(aa)3. and (bb)3.,
  270  has not requested a hearing in accordance with this section, the
  271  following shall apply:
  272         a.(a) For abandoned property other than a derelict vessel
  273  or a vessel designated in ss. 327.73(1)(aa)3. and (bb)3., the
  274  law enforcement agency may retain any or all of the property for
  275  its own use or for use by the state or unit of local government,
  276  trade such property to another unit of local government or state
  277  agency, donate the property to a charitable organization, sell
  278  the property, or notify the appropriate refuse removal service.
  279         b.For a derelict vessel or a vessel designated in ss.
  280  327.73(1)(aa)3. and (bb)3., the law enforcement agency or its
  281  designee shall remove the vessel from the waters of the state
  282  and destroy and dispose of the vessel or authorize another
  283  governmental entity or its designee to do so. A law enforcement
  284  agency or its designee shall remove a vessel from the waters of
  285  the state and destroy and dispose of the vessel or authorize
  286  another governmental entity or its designee to do so if,
  287  following a hearing pursuant to this section, the judge,
  288  magistrate, administrative law judge, or hearing officer has
  289  determined the vessel to be derelict as provided in s. 823.11 or
  290  otherwise in violation of the law in accordance with s.
  291  327.73(1)(aa)3. or s. 327.73(1)(bb)3.
  292         (b) For lost property, the officer shall take custody and
  293  the agency shall retain custody of the property for 90 days. The
  294  agency shall publish notice of the intended disposition of the
  295  property, as provided in this section, during the first 45 days
  296  of this time period.
  297         1. If the agency elects to retain the property for use by
  298  the unit of government, donate the property to a charitable
  299  organization, surrender such property to the finder, sell the
  300  property, or trade the property to another unit of local
  301  government or state agency, notice of such election shall be
  302  given by an advertisement published once a week for 2
  303  consecutive weeks in a newspaper of general circulation in the
  304  county where the property was found if the value of the property
  305  is more than $100. If the value of the property is $100 or less,
  306  notice shall be given by posting a description of the property
  307  at the law enforcement agency where the property was turned in.
  308  The notice must be posted for not less than 2 consecutive weeks
  309  in a public place designated by the law enforcement agency. The
  310  notice must describe the property in a manner reasonably
  311  adequate to permit the rightful owner of the property to claim
  312  it.
  313         2. If the agency elects to sell the property, it must do so
  314  at public sale by competitive bidding. Notice of the time and
  315  place of the sale shall be given by an advertisement of the sale
  316  published once a week for 2 consecutive weeks in a newspaper of
  317  general circulation in the county where the sale is to be held.
  318  The notice shall include a statement that the sale shall be
  319  subject to any and all liens. The sale must be held at the
  320  nearest suitable place to that where the lost or abandoned
  321  property is held or stored. The advertisement must include a
  322  description of the goods and the time and place of the sale. The
  323  sale may take place no earlier than 10 days after the final
  324  publication. If there is no newspaper of general circulation in
  325  the county where the sale is to be held, the advertisement shall
  326  be posted at the door of the courthouse and at three other
  327  public places in the county at least 10 days prior to sale.
  328  Notice of the agency’s intended disposition shall describe the
  329  property in a manner reasonably adequate to permit the rightful
  330  owner of the property to identify it.
  331         (4) The owner of any abandoned or lost property who, after
  332  notice as provided in this section, does not remove such
  333  property within the specified period shall be liable to the law
  334  enforcement agency, other governmental entity, or their designee
  335  for all costs of removal, storage, and destruction of such
  336  property, less any salvage value obtained by disposal of the
  337  property. Upon final disposition of the property, the law
  338  enforcement officer or representative of the law enforcement
  339  agency or other governmental entity shall notify the owner, if
  340  known, of the amount owed. In the case of an abandoned vessel or
  341  motor vehicle, any person who neglects or refuses to pay such
  342  amount is not entitled to be issued a certificate of
  343  registration for such vessel or motor vehicle, or any other
  344  vessel or motor vehicle, until such costs have been paid. The
  345  law enforcement officer shall supply the Department of Highway
  346  Safety and Motor Vehicles with a list of persons whose vessel
  347  registration privileges or whose motor vehicle privileges have
  348  been revoked under this subsection. Neither the department nor
  349  any other person acting as agent thereof shall issue a
  350  certificate of registration to a person whose vessel or motor
  351  vehicle registration privileges have been revoked, as provided
  352  by this subsection, until such costs have been paid.
  353         Section 5. This act shall take effect July 1, 2020.