The Florida Senate

327.01  Short title.

327.02  Definitions of terms used in this chapter and in chapter 328.

327.04  Rules.

327.22  Regulation of vessels by municipalities or counties.

327.30  Collisions, accidents, and casualties.

327.301  Written reports of accidents.

327.31  Transmittal of information.

327.32  Vessel declared dangerous instrumentality; civil liability.

327.33  Reckless or careless operation of vessel.

327.34  Incapacity of operator.

327.35  Boating under the influence; penalties; "designated drivers".

327.352  Breath, blood, and urine tests for alcohol, chemical substances, or controlled substances; implied consent; right to refuse.

327.35215  Penalty for failure to submit to test.

327.353  Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.

327.354  Presumption of impairment; testing methods.

327.355  Operation of vessels by persons under 21 years of age who have consumed alcoholic beverages.

327.36  Mandatory adjudication; prohibition against accepting plea to lesser included offense.

327.37  Water skis, parasails, and aquaplanes regulated.

327.38  Skiing prohibited while intoxicated or under influence of drugs.

327.39  Personal watercraft regulated.

327.395  Boating safety identification cards.

327.40  Uniform waterway markers for safety and navigation.

327.41  Uniform waterway regulatory markers.

327.42  Mooring to or damaging of markers or buoys prohibited.

327.43  Silver Glen Run and Silver Glen Springs; navigation channel; anchorage buoys; violations.

327.44  Interference with navigation.

327.46  Restricted areas.

327.48  Regattas, races, marine parades, tournaments, or exhibitions.

327.50  Vessel safety regulations; equipment and lighting requirements.

327.52  Maximum loading and horsepower.

327.53  Marine sanitation.

327.54  Liveries; safety regulations; penalty.

327.56  Safety and marine sanitation equipment inspections; qualified.

327.58  Jurisdiction.

327.59  Marina evacuations.

327.60  Local regulations; limitations.

327.65  Muffling devices.

327.70  Enforcement of this chapter and chapter 328.

327.71  Exemption.

327.72  Penalties.

327.73  Noncriminal infractions.

327.731  Mandatory education for violators.

327.74  Uniform boating citations.

327.803  Boating Advisory Council.

327.804  Compilation of statistics on boating accidents and violations.

327.01  Short title.--This chapter shall be known as the "Florida Vessel Safety Law."

History.--s. 1, ch. 59-399; s. 1, ch. 65-361; s. 1, ch. 84-184; s. 5, ch. 99-289.

Note.--Former s. 371.011.

327.02  Definitions of terms used in this chapter and in chapter 328.--As used in this chapter and in chapter 328, unless the context clearly requires a different meaning, the term:

(1)  "Alien" means a person who is not a citizen of the United States.

(2)  "Boating accident" means a collision, accident, or casualty involving a vessel in or upon, or entering into or exiting from, the water, including capsizing, collision with another vessel or object, sinking, personal injury, death, disappearance of any person from on board under circumstances which indicate the possibility of death or injury, or property damage to any vessel or dock.

(3)  "Canoe" means a light, narrow vessel with curved sides and with both ends pointed. A canoe-like vessel with a transom may not be excluded from the definition of a canoe if the width of its transom is less than 45 percent of the width of its beam or it has been designated as a canoe by the United States Coast Guard.

(4)  "Commercial vessel" means:

(a)  Any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or any vessel licensed pursuant to s. 370.06 from which commercial quantities of saltwater products are harvested, from within and without the waters of this state for sale either to the consumer, retail dealer, or wholesale dealer.

(b)  Any vessel engaged in any activity wherein a fee is paid by the user, either directly or indirectly, to the owner, operator, or custodian of the vessel.

(5)  "Commission" means the Fish and Wildlife Conservation Commission.

(6)  "Dealer" means any person authorized by the Department of Revenue to buy, sell, resell, or otherwise distribute vessels. Such person shall have a valid sales tax certificate of registration issued by the Department of Revenue and a valid commercial or occupational license required by any county, municipality, or political subdivision of the state in which the person operates.

(7)  "Division" means the Division of Law Enforcement of the Fish and Wildlife Conservation Commission.

(8)  "Documented vessel" means a vessel for which a valid certificate of documentation is outstanding pursuant to 46 C.F.R. part 67.

(9)  "Floating structure" means a floating entity, with or without accommodations built thereon, which is not primarily used as a means of transportation on water but which serves purposes or provides services typically associated with a structure or other improvement to real property. The term "floating structure" includes, but is not limited to, each entity used as a residence, place of business or office with public access, hotel or motel, restaurant or lounge, clubhouse, meeting facility, storage or parking facility, mining platform, dredge, dragline, or similar facility or entity represented as such. Floating structures are expressly excluded from the definition of the term "vessel" provided in this section. Incidental movement upon water or resting partially or entirely on the bottom shall not, in and of itself, preclude an entity from classification as a floating structure.

(10)  "Florida Intracoastal Waterway" means the Atlantic Intracoastal Waterway, the Georgia state line north of Fernandina to Miami; the Port Canaveral lock and canal to the Atlantic Intracoastal Waterway; the Atlantic Intracoastal Waterway, Miami to Key West; the Okeechobee Waterway, Stuart to Fort Myers; the St. Johns River, Jacksonville to Sanford; the Gulf Intracoastal Waterway, Anclote to Fort Myers; the Gulf Intracoastal Waterway, Carrabelle to Tampa Bay; Carrabelle to Anclote open bay section (using Gulf of Mexico); the Gulf Intracoastal Waterway, Carrabelle to the Alabama state line west of Pensacola; and the Apalachicola, Chattahoochee, and Flint Rivers in Florida.

(11)  "Homemade vessel" means any vessel built after October 31, 1972, for which a federal hull identification number is not required to be assigned by the manufacturer pursuant to federal law, or any vessel constructed or assembled prior to November 1, 1972, by other than a licensed manufacturer for his or her own use or the use of a specific person. A vessel assembled from a manufacturer's kit or constructed from an unfinished manufactured hull shall be considered to be a homemade vessel if such a vessel is not required to have a hull identification number assigned by the United States Coast Guard. A rebuilt or reconstructed vessel shall in no event be construed to be a homemade vessel.

(12)  "Houseboat" means any vessel which is used primarily as a residence for a minimum of 21 days during any 30-day period, in a county of this state, and this residential use of the vessel is to the preclusion of the use of the vessel as a means of transportation.

(13)  "Length" means the measurement from end to end over the deck parallel to the centerline excluding sheer.

(14)  "Lien" means a security interest which is reserved or created by a written agreement recorded with the department which secures payment or performance of an obligation and is generally valid against third parties.

(15)  "Lienholder" means a person holding a security interest in a vessel, which interest is recorded with the department.

(16)  "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.

A commercial fishing boat is expressly excluded from the term "live-aboard vessel."

(17)  "Manufactured vessel" means any vessel built after October 31, 1972, for which a federal hull identification number is required pursuant to federal law, or any vessel constructed or assembled prior to November 1, 1972, by a duly licensed manufacturer.

(18)  "Marina" means a licensed commercial facility which provides secured public moorings or dry storage for vessels on a leased basis. A commercial establishment authorized by a licensed vessel manufacturer as a dealership shall be considered a marina for nonjudicial sale purposes.

(19)  "Marine sanitation device" means any equipment other than a toilet, for installation on board a vessel, which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage. Marine sanitation device Types I, II, and III shall be defined as provided in 33 C.F.R. part 159.

(20)  "Motorboat" means any vessel which is propelled or powered by machinery and which is used or capable of being used as a means of transportation on water.

(21)  "Navigation rules" means the International Navigational Rules Act of 1977, in effect on June 1, 1983, for vessels on waters outside of established navigational lines of demarcation as specified in 33 C.F.R. part 80 or the Inland Navigational Rules Act of 1980, in effect on December 24, 1981, for vessels on all waters not outside of such lines of demarcation.

(22)  "Noncommercial vessel" means any vessel other than a commercial vessel as defined in this section.

(23)  "Nonresident" means a citizen of the United States who has not established residence in this state and has not continuously resided in this state for 1 year and in one county for the 6 months immediately preceding the initiation of a vessel titling or registration action.

(24)  "Operate" means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel's navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state; provided, however, that this definition shall not apply to a person on a vessel that is docked or otherwise made fast to the shore and shall not apply to a vessel owner or operator who designates a driver pursuant to s. 327.35.

(25)  "Owner" means a person, other than a lienholder, having the property in or title to a vessel. The term includes a person entitled to the use or possession of a vessel subject to an interest in another person, reserved or created by agreement and securing payment of performance of an obligation, but the term excludes a lessee under a lease not intended as security.

(26)  "Person" means an individual, partnership, firm, corporation, association, or other entity.

(27)  "Personal watercraft" means a small class A-1 or A-2 vessel which uses an outboard motor, or an inboard motor powering a water jet pump, as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on, or being towed behind the vessel, rather than in the conventional manner of sitting or standing inside the vessel.

(28)  "Portable toilet" means a device consisting of a lid, seat, containment vessel, and support structure that is specifically designed to receive, retain, and discharge human waste and that is capable of being removed from a vessel by hand.

(29)  "Prohibited activity" means such activity as will impede or disturb navigation or creates a safety hazard on waterways of this state.

(30)  "Racing shell," "rowing scull," or "racing kayak" means a manually propelled vessel which is recognized by national or international racing associations for use in competitive racing and in which all occupants, with the exception of a coxswain, if one is provided, row, scull, or paddle and which is not designed to carry and does not carry any equipment not solely for competitive racing.

(31)  "Registration" means a state operating license on a vessel which is issued with an identifying number, an annual certificate of registration, and a decal designating the year for which a registration fee is paid.

(32)  "Regulatory marker" means any anchored or fixed marker in, on, or over the water, or anchored platform on the surface of the water, other than a marker provided in s. 327.40, and includes, but is not limited to, a bathing beach marker, speed zone marker, information marker, restricted zone marker, congested area marker, or warning marker.

(33)  "Resident" means a citizen of the United States who has established residence in this state and has continuously resided in this state for 1 year and in one county for the 6 months immediately preceding the initiation of a vessel titling or registration action.

(34)  "Sailboat" means any vessel whose sole source of propulsion is the natural element (i.e., wind).

(35)  "Unclaimed vessel" means any undocumented vessel, including its machinery, rigging, and accessories, which is in the physical possession of any marina, garage, or repair shop for repairs, improvements, or other work with the knowledge of the vessel owner and for which the costs of such services have been unpaid for a period in excess of 90 days from the date written notice of the completed work is given by the marina, garage, or repair shop to the vessel owner.

(36)  "Vessel" is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and air boat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

(37)  "Waters of this state" means any navigable waters of the United States within the territorial limits of this state, and the marginal sea adjacent to this state and the high seas when navigated as a part of a journey or ride to or from the shore of this state, and all the inland lakes, rivers, and canals under the jurisdiction of this state.

History.--s. 1, ch. 59-399; s. 1, ch. 63-103; s. 1, ch. 65-361; s. 17, ch. 69-216; ss. 25, 35, ch. 69-106; s. 3, ch. 70-336; s. 132, ch. 71-377; s. 1, ch. 72-16; s. 1, ch. 72-55; ss. 1, 15, ch. 74-327; s. 23, ch. 79-334; s. 1, ch. 81-100; s. 1, ch. 81-114; s. 76, ch. 82-226; s. 1, ch. 83-20; s. 2, ch. 84-184; s. 1, ch. 85-252; s. 1, ch. 88-133; s. 1, ch. 89-136; s. 2, ch. 89-250; s. 2, ch. 94-241; s. 152, ch. 94-356; s. 951, ch. 95-148; s. 1, ch. 95-333; s. 3, ch. 98-308; ss. 18, 89, ch. 99-245.

Note.--Former s. 371.021.

327.04  Rules.--The department has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring powers or duties upon it.

History.--s. 1, ch. 59-399; s. 4, ch. 63-103; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 154, ch. 94-356; s. 48, ch. 95-333; s. 53, ch. 96-413; s. 67, ch. 98-200; s. 8, ch. 99-289.

Note.--Former s. 371.161.

327.22  Regulation of vessels by municipalities or counties.--

(1)  Nothing in this chapter shall be construed to prohibit any municipality or county that expends money for the patrol, regulation, and maintenance of any lakes, rivers, or waters and for other boating-related activities in such municipality or county from regulating vessels resident in such municipality or county. Any county or municipality may adopt ordinances which provide for enforcement of noncriminal violations of s. 327.33 relating to the careless operation of a vessel which results in the endangering or damaging of property, by citation mailed to registered owner of the vessel. Any such ordinance shall apply only in designated restricted areas which are properly marked and in need of shoreline protection. Any county and the municipalities located within the county may jointly regulate vessels.

(2)  Citations issued to liveried vessels pursuant to this subsection shall be the responsibility of the lessee of the vessel. It shall be the responsibility of the lessor upon request of the agency issuing the citation, to provide the name and address of the lessee. It shall be the responsibility of the livery to provide such information as a part of the rental agreement. The livery is not responsible for the payment of citations if the livery provides the required information.

History.--s. 1, ch. 65-361; s. 8, ch. 74-327; s. 112, ch. 77-104; s. 24, ch. 79-334; s. 2, ch. 82-17; s. 7, ch. 84-184; s. 1, ch. 85-108; s. 1, ch. 85-287; s. 4, ch. 89-168; s. 1, ch. 90-219; s. 1, ch. 92-188; s. 21, ch. 99-289.

Note.--Former s. 371.63.

327.30  Collisions, accidents, and casualties.--

(1)  It is the duty of the operator of a vessel involved in a collision, accident, or other casualty, so far as he or she can do so without serious danger to the operator's own vessel, crew, and passengers, if any, to render to other persons affected by the collision, accident, or other casualty such assistance as is practicable and necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also to give his or her name, address, and identification of his or her vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty. The operator of a vessel involved in an accident with an unattended vessel shall take all reasonable steps to locate and notify the owner or person in charge of such vessel of the accident, furnishing to such owner his or her name, address, and registration number and reporting as required under this section.

(2)  In the case of collision, accident, or other casualty involving a vessel in or upon or entering into or exiting from the water, including capsizing, collision with another vessel or object, sinking, personal injury requiring medical treatment beyond immediate first aid, death, disappearance of any person from on board under circumstances which indicate the possibility of death or injury, or damage to any vessel or other property in an apparent aggregate amount of at least $500, the operator shall without delay, by the quickest means available give notice of the accident to one of the following agencies: the Division of Law Enforcement of the Fish and Wildlife Conservation Commission; the sheriff of the county within which the accident occurred; or the police chief of the municipality within which the accident occurred, if applicable.

(3)  The statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to an accident does not extend to information that would violate the privilege of such person against self-incrimination.

(4)  Each coroner or other official performing like functions, upon learning of the death of a person in his or her jurisdiction as a result of a boating accident, shall immediately notify the nearest office of the Department of Law Enforcement.

(5)  It is unlawful for a person operating a vessel involved in an accident or injury to leave the scene of the accident or injury without giving all possible aid to all persons involved and making a reasonable effort to locate the owner or persons affected and subsequently complying with and notifying the appropriate law enforcement official as required under this section. Any person who violates this subsection with respect to an accident resulting in personal injury commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who violates this subsection with respect to an accident resulting in property damage only commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(6)  Any law enforcement officer who investigates a boating collision or accident may arrest or cite the operator of any vessel involved in the accident or collision when, based upon personal investigation, the officer has probable cause to believe that the operator has committed any offense in connection with the accident or collision.

History.--s. 1, ch. 59-399; s. 4, ch. 61-511; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 34, ch. 79-65; s. 5, ch. 81-100; s. 24, ch. 87-243; s. 1, ch. 87-392; s. 3, ch. 89-117; s. 44, ch. 91-224; s. 455, ch. 95-148; s. 16, ch. 96-330; s. 41, ch. 97-96; s. 22, ch. 99-245.

Note.--Former s. 371.141.

327.301  Written reports of accidents.--

(1)  The operator of a vessel that is in any manner involved in an accident resulting in bodily injury, death, or disappearance of any person or damage to any vessel or other property in an apparent aggregate amount of at least $500 shall, within the time limits specified in 33 C.F.R. s. 173.55, forward a written report of the accident to the division. Whenever the operator of the vessel is physically incapable of making a written report, the owner of the vessel shall, within the time limits specified in 33 C.F.R. s. 173.55, make the report not made by the operator. However, when the investigating officer has made a written report of the accident pursuant to subsection (3), a written report need not be forwarded to the division by the operator.

(2)  The division may require any operator of a vessel involved in an accident of which written report must be made as provided in this section to file supplemental written reports whenever the original report is insufficient in the opinion of the division, and may require any witness to the accident to render a report to the division.

(3)  Every law enforcement officer who in the regular course of duty investigates a boating accident that resulted in bodily injury, death, or disappearance of any person or damage to any vessel or other property in an apparent aggregate amount of at least $500 shall, within 24 hours after completing the investigation, forward a written report of the accident to the division. However, in every case in which an accident report is required by this section and a written report by a law enforcement officer is not prepared, the law enforcement officer shall provide each party involved in the accident a short-form report, prescribed by the division, to be completed by the party. The short-form report must include, but is not limited to: the date, time, and location of the accident; a description of the vessels involved; the names and addresses of the parties involved; the names and addresses of witnesses; and the name, badge number, and law enforcement agency of the officer investigating the accident. Accident reports made by law enforcement officers may not be used for commercial solicitation purposes; however, use of an accident report for purposes of publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as a "commercial purpose."

(4)  Except as specified in this subsection, each accident report made by a person involved in an accident and any statement made by such person to a law enforcement officer for the purpose of completing an accident report required by this section is without prejudice to the individual reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer who is a witness in a criminal trial may testify as to any statement made to the officer by the person involved in the accident if that person's privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 327.352 or s. 327.353 are not confidential and shall be admissible into evidence in accordance with the provisions of s. 327.354. Accident reports made by persons involved in accidents may not be used for commercial solicitation purposes; however, use of an accident report for purposes of publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as a "commercial purpose."

(5)  For the purposes of this section, a written report includes a report generated through the use of information technology resources as defined in s. 282.303.

(6)  Any operator failing to file the written report required under subsection (1) or a supplemental written report when required by the division under subsection (2) is guilty of a noncriminal infraction.

History.--s. 17, ch. 96-330.

327.31  Transmittal of information.--In accordance with any request made by an authorized official or agency of the United States, any information compiled or otherwise available to the Division of Law Enforcement concerning boating accidents or other data shall be transmitted to that official or agency of the United States and annual statistics shall be assembled as required by federal law.

History.--s. 1, ch. 59-399; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 18, ch. 96-330.

Note.--Former s. 371.151.

327.32  Vessel declared dangerous instrumentality; civil liability.--All vessels, of whatever classification, shall be considered dangerous instrumentalities in this state, and any operator of a vessel shall, during any utilization of the vessel, exercise the highest degree of care in order to prevent injuries to others. Liability for reckless or careless operation of a vessel shall be confined to the operator in immediate charge of the vessel and not imposed upon the owner of the vessel, unless the owner is the operator or is present in the vessel when any injury or damage is occasioned by the reckless or careless operation of such vessel, whether such recklessness or carelessness consists of a violation of the provisions of the statutes of this state, or disregard in observing such care and such operation as the rules of the common law require.

History.--s. 3, ch. 59-400; s. 1, ch. 65-361; s. 5, ch. 84-188; s. 11, ch. 85-81.

Note.--Former s. 371.52.

327.33  Reckless or careless operation of vessel.--

(1)  It is unlawful to operate a vessel in a reckless manner. A person is guilty of reckless operation of a vessel who operates any vessel, or manipulates any water skis, aquaplane, or similar device, in willful or wanton disregard for the safety of persons or property at a speed or in a manner as to endanger, or likely to endanger, life or limb, or damage the property of, or injure any person. Any person who violates a provision of this subsection is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  Any person operating a vessel upon the waters of this state shall operate the vessel in a reasonable and prudent manner, having regard for other waterborne traffic, posted speed and wake restrictions, the presence of a divers-down flag as defined in s. 861.065, and all other attendant circumstances so as not to endanger the life, limb, or property of any person. Any person operating a vessel on a river, inlet, or navigation channel shall make a reasonable effort to maintain a distance of 100 feet from any divers-down flag. The failure to operate a vessel in a manner described in this subsection constitutes careless operation. However, vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel shall, absent negligence, not constitute damage or endangerment to property. Any person who violates the provisions of this subsection is guilty of a noncriminal violation as defined in s. 775.08.

(3)  Each person operating a vessel upon the waters of this state shall comply with the navigation rules.

(a)  A person whose violation of the navigation rules results in a boating accident, but whose violation did not constitute reckless operation of a vessel, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b)  A person whose violation of the navigation rules does not result in a boating accident and does not constitute reckless operation of a vessel is guilty of a noncriminal violation as defined in s. 775.08.

(c)  Law enforcement vessels may deviate from the navigational rules when such diversion is necessary to the performance of their duties and when such deviation may be safely accomplished.

(4)  Unless otherwise provided in this chapter, the ascertainment of fault in vessel operations and boating accidents shall be determined according to the navigation rules.

History.--s. 1, ch. 59-400; s. 3, ch. 63-105; s. 1, ch. 65-361; s. 6, ch. 81-100; s. 6, ch. 84-188; s. 6, ch. 86-35; s. 2, ch. 88-133; s. 2, ch. 89-136; s. 45, ch. 91-224; s. 1, ch. 92-92.

Note.--Former s. 371.50.

327.34  Incapacity of operator.--It is unlawful for the owner of any vessel or any person having such in charge or in control to authorize or knowingly permit the same to be operated by any person who by reason of physical or mental disability is incapable of operating such vessel under the prevailing circumstances. Nothing in this section shall be construed to prohibit operation of boats by paraplegics who are licensed to operate motor vehicles on the highways.

History.--s. 4, ch. 63-105; s. 1, ch. 65-361.

Note.--Former s. 371.504.

327.35  Boating under the influence; penalties; "designated drivers".--

(1)  A person is guilty of the offense of boating under the influence and is subject to punishment as provided in subsection (2) if the person is operating a vessel within this state and:

(a)  The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b)  The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c)  The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

(2)(a)  Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1.  By a fine of:

a.  Not less than $250 or more than $500 for a first conviction.

b.  Not less than $500 or more than $1,000 for a second conviction.

c.  Not less than $1,000 or more than $2,500 for a third conviction; and

2.  By imprisonment for:

a.  Not more than 6 months for a first conviction.

b.  Not more than 9 months for a second conviction.

c.  Not more than 12 months for a third conviction.

(b)  Any person who is convicted of a fourth or subsequent violation of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; however, the fine imposed for such fourth or subsequent violation may not be less than $1,000.

(3)  Any person:

(a)  Who is in violation of subsection (1);

(b)  Who operates a vessel; and

(c)  Who, by reason of such operation, causes:

1.  Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2.  Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3.  The death of any human being commits BUI manslaughter, and commits:

a.  A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

b.  A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I)  At the time of the accident, the person knew, or should have known, that the accident occurred; and

(II)  The person failed to give information and render aid as required by s. 316.062.

This sub-subparagraph does not require that the person knew that the accident resulted in injury or death.

(4)  Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.20 or higher, or any person who is convicted of a violation of subsection (1) and who at the time of the offense was accompanied in the vessel by a person under the age of 18 years, shall be punished:

(a)  By a fine of:

1.  Not less than $500 or more than $1,000 for a first conviction.

2.  Not less than $1,000 or more than $2,000 for a second conviction.

3.  Not less than $2,000 or more than $5,000 for a third conviction.

(b)  By imprisonment for:

1.  Not more than 9 months for a first conviction.

2.  Not more than 12 months for a second conviction.

3.  Not more than 12 months for a third conviction.

For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood-alcohol level or breath-alcohol level of 0.20 or higher.

(5)  In addition to any sentence or fine, the court shall place any offender convicted of violating this section on monthly reporting probation and shall require attendance at a substance abuse course specified by the court; and the agency conducting the course may refer the offender to an authorized service provider for substance abuse evaluation and treatment, in addition to any sentence or fine imposed under this section. The offender shall assume reasonable costs for such education, evaluation, and treatment, with completion of all such education, evaluation, and treatment being a condition of reporting probation. Treatment resulting from a psychosocial evaluation may not be waived without a supporting psychosocial evaluation conducted by an agency appointed by the court and with access to the original evaluation. The offender shall bear the cost of this procedure. The term "substance abuse" means the abuse of alcohol or any substance named or described in Schedules I through V of s. 893.03.

(6)  With respect to any person convicted of a violation of subsection (1), regardless of any other penalty imposed:

(a)  For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). The total period of probation and incarceration may not exceed 1 year.

(b)  For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(c)  For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of the vessel that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e) or paragraph (f). At least 48 hours of confinement must be consecutive.

(d)  The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vessel. Within 7 business days after the date that the court issues the order of impoundment, and once again 30 business days before the actual impoundment or immobilization of the vessel, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vessel, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vessel.

(e)  A person who owns but was not operating the vessel when the offense occurred may submit to the court a police report indicating that the vessel was stolen at the time of the offense or documentation of having purchased the vessel after the offense was committed from an entity other than the defendant or the defendant's agent. If the court finds that the vessel was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f)  A person who owns but was not operating the vessel when the offense occurred, and whose vessel was stolen or who purchased the vessel after the offense was committed directly from the defendant or the defendant's agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vessel was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vessel, the order must be dismissed and the owner of the vessel will incur no costs.

(g)  All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vessel or, if the vessel is leased or rented, by the person leasing or renting the vessel, unless the impoundment or immobilization order is dismissed.

(h)  The person who owns a vessel that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vessel and who has not requested a review of the impoundment pursuant to paragraph (e) or paragraph (f), may, within 10 days after the date that person has knowledge of the location of the vessel, file a complaint in the county in which the owner resides to determine whether the vessel was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vessel released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of the costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vessel. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vessel or to the contents of the vessel.

(i)  A defendant, in the court's discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment.

For the purposes of this section, any conviction for a violation of s. 316.193, a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028, or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section.

(7)  A conviction under this section does not bar any civil suit for damages against the person so convicted.

(8)  A person who is arrested for a violation of this section may not be released from custody:

(a)  Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired;

(b)  Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

(c)  Until 8 hours have elapsed from the time the person was arrested.

(9)  Notwithstanding any other provision of this section, for any person convicted of a violation of subsection (1), in addition to the fines set forth in subsections (2) and (4), an additional fine of $60 shall be assessed and collected in the same manner as the fines set forth in subsections (2) and (4). All fines collected under this subsection shall be paid monthly into the Brain and Spinal Cord Injury Rehabilitation Trust Fund and used for the purposes set forth in ¹s. 413.613, after 5 percent is deducted therefrom by the clerk of the court for administrative costs.

(10)  It is the intent of the Legislature to encourage boaters to have a "designated driver" who does not consume alcoholic beverages.

History.--s. 2, ch. 59-400; s. 5, ch. 63-105; s. 1, ch. 65-361; s. 1, ch. 71-81; s. 22, ch. 73-331; s. 5, ch. 83-187; s. 7, ch. 84-188; s. 7, ch. 91-255; s. 8, ch. 93-124; s. 456, ch. 95-148; s. 19, ch. 96-330; s. 98, ch. 97-264; s. 49, ch. 97-271; s. 10, ch. 98-308; s. 14, ch. 98-324.

¹Note.--Transferred to s. 381.79 by s. 23, ch. 99-240.

Note.--Former s. 371.51.

327.352  Breath, blood, and urine tests for alcohol, chemical substances, or controlled substances; implied consent; right to refuse.--

(1)(a)  The Legislature declares that the operation of a vessel is a privilege that must be exercised in a reasonable manner. In order to protect the public health and safety, it is essential that a lawful and effective means of reducing the incidence of boating while impaired or intoxicated be established. Therefore, any person who accepts the privilege extended by the laws of this state of operating a vessel within this state is, by so operating such vessel, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances, if the person is lawfully arrested for any offense allegedly committed while the person was operating a vessel while under the influence of alcoholic beverages, chemical substances, or controlled substances. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was operating the vessel within this state while under the influence of alcoholic beverages. The urine test must be incidental to a lawful arrest and administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer who has reasonable cause to believe such person was operating a vessel within this state while under the influence of controlled substances. The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved. The administration of one type of test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath or urine, or both, will result in a civil penalty of $500. The refusal to submit to a chemical or physical breath or urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

(b)1.  The blood-alcohol level must be based upon grams of alcohol per 100 milliliters of blood. The breath-alcohol level must be based upon grams of alcohol per 210 liters of breath.

2.  An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.

(c)  Any person who accepts the privilege extended by the laws of this state of operating a vessel within this state is, by operating such vessel, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was operating a vessel while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term "other medical facility" includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test. Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in a civil penalty of $500. The refusal to submit to a blood test upon the request of a law enforcement officer shall be admissible in evidence in any criminal proceeding.

(d)  If the arresting officer does not request a chemical or physical breath test of the person arrested for any offense allegedly committed while the person was operating a vessel while under the influence of alcoholic beverages or controlled substances, the person may request the arresting officer to have a chemical or physical test made of the arrested person's breath or a test of the urine or blood for the purpose of determining the alcoholic content of the person's blood or breath or the presence of chemical substances or controlled substances; and, if so requested, the arresting officer shall have the test performed.

(e)1.  The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of a law enforcement officer substantially in accordance with rules of the Department of Law Enforcement. Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and ease of administration, and must provide an approved method of administration which must be followed in all such tests given under this section. However, the failure of a law enforcement officer to request the withdrawal of blood does not affect the admissibility of a test of blood withdrawn for medical purposes.

2.  Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining its alcoholic content or the presence of chemical substances or controlled substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood does not affect the admissibility of a test of blood withdrawn for medical purposes.

3.  The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person's blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person's opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person's own expense.

4.  Upon the request of the person tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to the person or his or her attorney.

5.  A hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person assisting a law enforcement officer does not incur any civil or criminal liability as a result of the withdrawal or analysis of a blood or urine specimen, or the chemical or physical test of a person's breath pursuant to accepted medical standards when requested by a law enforcement officer, regardless of whether or not the subject resisted administration of the test.

(2)  The results of any test administered pursuant to this section for the purpose of detecting the presence of any controlled substance shall not be admissible as evidence in a criminal prosecution for the possession of a controlled substance.

(3)  Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical records, information relating to the alcoholic content of the blood or breath or the presence of chemical substances or controlled substances in the blood obtained pursuant to this section shall be released to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of s. 327.35 upon request for such information.

History.--s. 2, ch. 84-188; s. 3, ch. 88-82; s. 3, ch. 88-133; s. 8, ch. 91-255; s. 458, ch. 95-148; s. 21, ch. 96-330; s. 5, ch. 98-308.

327.35215  Penalty for failure to submit to test.--

(1)  A person who is lawfully arrested for an alleged violation of s. 327.35 and who refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352 is subject to a civil penalty of $500.

(2)  When a person refuses to submit to a blood test, breath test, or urine test pursuant to s. 327.352, a law enforcement officer who is authorized to make arrests for violations of this chapter shall file with the clerk of the court, on a form provided by the department, a certified statement that probable cause existed to arrest the person for a violation of s. 327.35 and that the person refused to submit to a test as required by s. 327.352. Along with the statement, the officer must also submit a sworn statement on a form provided by the department that the person has been advised of both the penalties for failure to submit to the blood, breath, or urine test and the procedure for requesting a hearing.

(3)  A person who has been advised of the penalties pursuant to subsection (2) may, within 30 days afterwards, request a hearing before a county court judge. A request for a hearing tolls the period for payment of the civil penalty, and, if assessment of the civil penalty is sustained by the hearing and any subsequent judicial review, the civil penalty must be paid within 30 days after final disposition. The clerk of the court shall notify the department of the final disposition of all actions filed under this section.

(4)  It is unlawful for any person who has not paid a civil penalty imposed pursuant to this section, or who has not requested a hearing with respect to the civil penalty, within 30 calendar days after receipt of notice of the civil penalty to operate a vessel upon the waters of this state. Violation of this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(5)  Moneys collected by the clerk of the court pursuant to this section shall be disposed of in the following manner:

(a)  If the arresting officer was employed or appointed by a state law enforcement agency except as a wildlife enforcement officer or a freshwater fisheries enforcement officer of the Fish and Wildlife Conservation Commission, the moneys shall be deposited into the Marine Resources Conservation Trust Fund.

(b)  If the arresting officer was employed or appointed by a county or municipal law enforcement agency, the moneys shall be deposited into the law enforcement trust fund of that agency.

(c)  If the arresting officer was employed or appointed by the Fish and Wildlife Conservation Commission as a wildlife enforcement officer or a freshwater fisheries enforcement officer, the money shall be deposited into the State Game Trust Fund.

History.--s. 6, ch. 98-308; s. 23, ch. 99-245.

327.353  Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.--

(1)  Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 327.352 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a vessel operated by a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, the person shall submit, upon the request of a law enforcement officer, to a test of the person's blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require the person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. The term "serious bodily injury" means an injury to any person, including the operator, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

(2)(a)  Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances or controlled substances therein. However, the failure of a law enforcement officer to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical purposes.

(b)  A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation at the discretion of the department. Insubstantial differences between approved methods or techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the department, in any individual case, do not render the test or test results invalid.

(c)  A hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person assisting a law enforcement officer shall not incur any civil or criminal liability as a result of the withdrawal or analysis of a blood specimen pursuant to accepted medical standards when requested by a law enforcement officer, regardless of whether or not the subject resisted administration of the test.

(3)(a)  Any criminal charge resulting from the incident giving rise to the officer's demand for testing shall be tried concurrently with a charge of any violation arising out of the same incident, unless, in the discretion of the court, such charges should be tried separately. If the charges are tried separately, the fact that the person refused, resisted, obstructed, or opposed testing is admissible at the trial of the criminal offense which gave rise to the demand for testing.

(b)  The results of any test administered pursuant to this section for the purpose of detecting the presence of any controlled substance are not admissible as evidence in a criminal prosecution for the possession of a controlled substance.

(4)  Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical records, information relating to the alcoholic content of the blood or the presence of chemical substances or controlled substances in the blood obtained pursuant to this section shall be released to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of s. 327.35 upon request for such information.

History.--s. 3, ch. 84-188; s. 26, ch. 87-243; s. 4, ch. 87-392; s. 11, ch. 91-255; s. 460, ch. 95-148; s. 22, ch. 96-330.

327.354  Presumption of impairment; testing methods.--

(1)  It is unlawful and punishable as provided in s. 327.35 for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties are impaired or to the extent that the person is deprived of full possession of normal faculties, to operate any vessel within this state. Such normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life.

(2)  At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating a vessel while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 327.352 or s. 327.353 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged, as shown by chemical analysis of the person's blood, or by chemical or physical test of the person's breath, gives rise to the following presumptions:

(a)  If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(b)  If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(c)  If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Any person who operates a vessel and who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of operating a vessel with an unlawful blood-alcohol level or breath-alcohol level.

The presumptions provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(3)  A chemical analysis of a person's blood to determine alcoholic content or a chemical or physical test of a person's breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Insubstantial differences between approved techniques and actual testing procedures or insubstantial defects concerning the permit issued by the department, in any individual case, do not render the test or test results invalid. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits subject to termination or revocation in accordance with rules adopted by the department.

(4)  Any person charged with a violation of s. 327.35 is entitled to trial by jury according to the Florida Rules of Criminal Procedure.

(5)  An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s. 327.352 or s. 327.353, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. The affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:

(a)  The type of test administered and the procedures followed;

(b)  The time of the collection of the blood or breath sample analyzed;

(c)  The numerical results of the test indicating the alcohol content of the blood or breath;

(d)  The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and

(e)  If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.

History.--s. 4, ch. 84-188; s. 4, ch. 88-82; s. 9, ch. 91-255; s. 24, ch. 92-58; s. 10, ch. 93-124; s. 461, ch. 95-148; s. 23, ch. 96-330.

327.355  Operation of vessels by persons under 21 years of age who have consumed alcoholic beverages.--

(1)(a)  Notwithstanding s. 327.35, it is unlawful for a person under the age of 21 who has a breath-alcohol level of 0.02 percent or higher to operate or be in actual physical control of a vessel.

(b)  A law enforcement officer who has probable cause to believe that a vessel is being operated by or is in the actual physical control of a person who is under the age of 21 while under the influence of alcoholic beverages or who has any breath-alcohol level may lawfully detain such a person and may request that person to submit to a test to determine his or her breath-alcohol level. If the person under the age of 21 refuses to submit to such testing, the law enforcement officer shall warn the person that failure to submit to the breath test will result in the required performance of 50 hours of public service and that his or her vessel operating privilege will be suspended until the public service is performed. Failure or refusal to submit to a breath test after this warning is a violation of this section.

(2)  Any person under the age of 21 who accepts the privilege extended by the laws of this state of operating a vessel upon the waters of this state, by so operating such vessel, is deemed to have expressed his or her consent to the provisions of this section.

(3)  A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized by s. 316.1932 or s. 327.352, or by a preliminary alcohol screening test device listed in the United States Department of Transportation's conforming-product list of evidential breath-measurement devices. The reading from such a device is admissible in evidence in any trial or hearing.

(4)  A violation of this section is a noncriminal infraction, and being detained pursuant to this section does not constitute an arrest. This section does not bar prosecution under s. 327.35, and the penalties provided herein shall be imposed in addition to any other penalty provided for boating under the influence or for refusal to submit to testing.

(5)  Any person who is convicted of a violation of subsection (1) shall be punished as follows:

(a)  The court shall order the defendant to participate in public service or a community work project for a minimum of 50 hours;

(b)  The court shall order the defendant to refrain from operating any vessel until the 50 hours of public service or community work has been performed; and

(c)  Enroll in, attend, and successfully complete a boating safety course that meets minimum standards established by the department by rule.

(6)  For the purposes of this section, "conviction" means a finding of guilt or the acceptance of a plea of guilty or nolo contendere, regardless of whether or not adjudication was withheld. Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold imposition of sentence for any violation of this section. Any person who operates any vessel on the waters of this state while his or her vessel operating privilege is suspended pursuant to this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 8, ch. 98-308.

327.36  Mandatory adjudication; prohibition against accepting plea to lesser included offense.--

(1)  Notwithstanding the provisions of s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s. 327.35, for manslaughter resulting from the operation of a vessel, or for vessel homicide.

(2)(a)  No trial judge may accept a plea of guilty to a lesser offense from a person who is charged with a violation of s. 327.35, manslaughter resulting from the operation of a vessel, or vessel homicide and who has been given a breath or blood test to determine blood or breath alcohol content, the results of which show a blood or breath alcohol content by weight of 0.16 percent or more.

(b)  A trial judge may not accept a plea of guilty to a lesser offense from a person charged with a felony violation of s. 327.35, manslaughter resulting from the operation of a vessel, or vessel homicide.

History.--s. 27, ch. 87-243; s. 5, ch. 87-392; s. 10, ch. 91-255; s. 24, ch. 96-330.

327.37  Water skis, parasails, and aquaplanes regulated.--

(1)(a)  A person may not operate a vessel on any waters of this state towing a person on water skis, or an aquaplane, or similar device unless there is in such vessel a person, in addition to the operator, in a position to observe the progress of the person being towed, or the vessel is equipped with a wide-angle rear view mirror mounted in such manner as to permit the operator of the vessel to observe the progress of the person being towed. This subsection does not apply to class A motorboats operated by the person being towed and designed to be incapable of carrying the operator in the motorboat.

(b)  A person may not operate a vessel on any waters of this state towing a person attached to a parasail or similar device unless there is a person in the vessel, in addition to the operator, in a position to observe the progress of the person being towed. A wide-angle rear view mirror is not acceptable for this purpose.

(2)(a)  A person may not engage in water skiing, parasailing, aquaplaning, or similar activity at any time between the hours from one-half hour after sunset to one-half hour before sunrise.

(b)  A person may not engage in water skiing, parasailing, aquaplaning, or any similar activity unless such person is wearing a type I, type II, type III, or noninflatable type V personal flotation device approved by the United States Coast Guard.

(3)  The provisions of subsections (1) and (2) do not apply to a performer engaged in a professional exhibition or a person preparing to participate or participating in an official regatta, boat race, marine parade, tournament, or exhibition held pursuant to s. 327.48.

(4)  A person may not operate or manipulate any vessel, tow rope, or other device by which the direction or location of water skis, parasail, aquaplane, innertube, sled, or similar device may be affected or controlled, in such a way as to cause the water skis, parasail, aquaplane, innertube, sled, or similar device or any person thereon to collide or strike against or be likely to collide or strike against any vessel, bridge, wharf, pier, dock, buoy, platform, piling, channel marker, or other object, except slalom buoys, ski jumps, or like objects used normally in competitive or recreational skiing.

(5)  A person may not operate any vessel towing a parasail or engage in parasailing within 100 feet of the marked channel of the Florida Intracoastal Waterway.

History.--s. 5, ch. 59-400; s. 9, ch. 63-105; s. 1, ch. 65-361; s. 8, ch. 84-188; s. 6, ch. 87-392; s. 4, ch. 94-241; s. 1, ch. 99-162.

Note.--Former s. 371.54.

327.38  Skiing prohibited while intoxicated or under influence of drugs.--No person shall manipulate any water skis, aquaplane, or similar device from a vessel while intoxicated or under the influence of any narcotic drug, barbiturate, or marihuana, to the extent that the person's normal faculties are impaired.

History.--s. 4, ch. 59-400; s. 8, ch. 63-105; s. 1, ch. 65-361; s. 462, ch. 95-148.

Note.--Former s. 371.53.

327.39  Personal watercraft regulated.--

(1)  A person may not operate a personal watercraft unless each person riding on or being towed behind such vessel is wearing a type I, type II, type III, or type V personal flotation device approved by the United States Coast Guard.

(2)  A person operating a personal watercraft equipped by the manufacturer with a lanyard type engine cutoff switch must attach such lanyard to his or her person, clothing, or personal flotation device as is appropriate for the specific vessel.

(3)  A person may not operate a personal watercraft at any time between the hours from one-half hour after sunset to one-half hour before sunrise. However, an agent or employee of a fire or emergency rescue service is exempt from this subsection while performing his or her official duties.

(4)  A personal watercraft must at all times be operated in a reasonable and prudent manner. Maneuvers which unreasonably or unnecessarily endanger life, limb, or property, including, but not limited to, weaving through congested vessel traffic, jumping the wake of another vessel unreasonably or unnecessarily close to such other vessel or when visibility around such other vessel is obstructed, and swerving at the last possible moment to avoid collision shall constitute reckless operation of a vessel, as provided in s. 327.33(1).

(5)  No person under the age of 14 shall operate a personal watercraft on the waters of this state.

(6)  It is unlawful for the owner of any personal watercraft or any person having charge over or control of a personal watercraft to authorize or knowingly permit the same to be operated by a person under 14 years of age in violation of this section. Any person who violates this subsection shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(7)  This section does not apply to a performer engaged in a professional exhibition or a person preparing to participate or participating in a regatta, race, marine parade, tournament, or exhibition held in compliance with s. 327.48.

History.--s. 3, ch. 89-136; s. 1, ch. 94-295; s. 953, ch. 95-148.

327.395  Boating safety identification cards.--

(1)  Until October 1, 2001, a person born after September 30, 1980, and on or after October 1, 2001, a person 21 years of age or younger may not operate a vessel powered by a motor of 10 horsepower or greater unless such person has in his or her possession aboard the vessel photographic identification and a boater safety identification card issued by the commission which shows that he or she has:

(a)  Completed a commission-approved boater education course that meets the minimum 8-hour instruction requirement established by the National Association of State Boating Law Administrators;

(b)  Passed a course equivalency examination approved by the commission; or

(c)  Passed a temporary certificate examination developed or approved by the commission.

(2)  Any person may obtain a boater safety identification card by complying with the requirements of this section.

(3)  The commission may appoint liveries, marinas, or other persons as its agents to administer the course, course equivalency examination, or temporary certificate examination and issue identification cards under guidelines established by the commission. An agent must charge the $2 examination fee, which must be forwarded to the commission with proof of passage of the examination and may charge and keep a $1 service fee.

(4)  An identification card issued to a person who has completed a boating education course or a course equivalency examination is valid for life. A card issued to a person who has passed a temporary certification examination is valid for 12 months from the date of issuance.

(5)  A person is exempt from subsection (1) if he or she:

(a)  Is licensed by the United States Coast Guard to serve as master of a vessel.

(b)  Operates a vessel only on a private lake or pond.

(c)  Is accompanied in the vessel by a person who is exempt from this section or who holds an identification card in compliance with this section, is 18 years of age or older, and is attendant to the operation of the vessel and responsible for any violation that occurs during the operation.

(d)  Is a nonresident who has in his or her possession proof that he or she has completed a boater education course or equivalency examination in another state which meets or exceeds the requirements of subsection (1).

(e)  Is exempted by rule of the commission.

(6)  A person who violates this section is guilty of a noncriminal infraction, punishable as provided in s. 327.73.

(7)  The commission shall design forms and adopt rules to administer this section. Such rules shall include provision for educational and other public and private entities to offer the course and administer examinations.

(8)  The commission shall institute and coordinate a statewide program of boating safety instruction and certification to ensure that boating courses and examinations are available in each county of the state.

(9)  The commission is authorized to establish and to collect a $2 examination fee to cover administrative costs.

(10)  The commission is authorized to adopt rules pursuant to chapter 120 to implement the provisions of this section.

History.--s. 1, ch. 96-187; s. 24, ch. 99-245.

327.40  Uniform waterway markers for safety and navigation.--

(1)  Waterways in Florida, unmarked by the Coast Guard, which need marking for safety or navigation purposes, shall be marked under the Uniform Safety and Navigation System adopted by the advisory panel of state officials to the Merchant Marine Council of the United States Coast Guard.

(2)  Application for marking inland lakes and state waters and any navigable waters under concurrent jurisdiction of the Coast Guard and the division shall be made to the division, accompanied by a map locating the approximate placement of markers, a statement concerning the purpose of marking and the names of persons responsible for the placement and upkeep of such markers. The division will secure the proper permission from the Coast Guard where required, make such investigations as needed and issue a permit. The division shall furnish the applicant with the information concerning the system adopted and regulations existing for placing and maintaining the uniform safety and navigation markers. The division shall keep records of all approvals given and counsel with individuals, counties, municipalities, motorboat clubs, or other groups desiring to mark waterways for safety and navigation purposes in Florida.

(3)  The placement of any safety or navigation marker on state submerged lands under this section does not subject such lands to the lease requirements of chapter 253.

History.--s. 6, ch. 63-105; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 4, ch. 90-219.

Note.--Former s. 371.521.

327.41  Uniform waterway regulatory markers.--

(1)  The Fish and Wildlife Conservation Commission shall adopt rules and regulations pursuant to chapter 120 establishing a uniform system of regulatory markers for the Florida Intracoastal Waterway, compatible with the system of regulatory markers prescribed by the United States Coast Guard, and shall give due regard to the System of Uniform Waterway Markers approved by the Advisory Panel of State Officials to the Merchant Marine Council, United States Coast Guard.

(2)  Any county or municipality which has been granted a restricted area designation, pursuant to s. 327.46, for a portion of the Florida Intracoastal Waterway within its jurisdiction may apply to the Fish and Wildlife Conservation Commission for permission to place regulatory markers within the restricted area.

(3)  Application for placing regulatory markers on the Florida Intracoastal Waterway shall be made to the ¹Division of Marine Resources, accompanied by a map locating the approximate placement of the markers, a statement of the specification of the markers, a statement of purpose of the markers, and a statement of the city or county responsible for the placement and upkeep of the markers.

(4)  No person or municipality, county, or other governmental entity shall place any regulatory markers in, on, or over the Florida Intracoastal Waterway without a permit from the ¹Division of Marine Resources.

(5)  Aquaculture leaseholds shall be marked as required by this section, and the commission may approve alternative marking requirements as a condition of the lease pursuant to s. 253.68. The provisions of this section notwithstanding, no permit shall be required for the placement of markers required by such a lease.

(6)  The commission is authorized to adopt rules pursuant to chapter 120 to implement the provisions of this section.

History.--s. 2, ch. 72-55; s. 158, ch. 94-356; s. 9, ch. 96-247; s. 25, ch. 99-245.

¹Note.--Transferred to the Fish and Wildlife Conservation Commission by s. 5, ch. 99-245.

Note.--Former s. 371.523.

327.42  Mooring to or damaging of markers or buoys prohibited.--

(1)  No person shall moor or fasten a vessel to a lawfully placed aid-to-navigation marker or buoy, regulatory marker or buoy, or area boundary marker or buoy, placed or erected by any governmental agency, except in case of emergency.

(2)  No person shall willfully damage, alter, or move a lawfully placed aid-to-navigation marker or buoy, regulatory marker or buoy, or area boundary marker or buoy.

History.--s. 1, ch. 72-20.

Note.--Former s. 371.524.

327.43  Silver Glen Run and Silver Glen Springs; navigation channel; anchorage buoys; violations.--

(1)  The Fish and Wildlife Conservation Commission is hereby directed to mark a navigation channel within Silver Glen Run and Silver Glen Springs, located on the western shore of Lake George on the St. Johns River.

(2)  The commission is further directed to establish permanent anchorage buoys within Silver Glen Run and Silver Glen Springs.

(3)  Vessel anchorage or mooring shall only be allowed utilizing permanently established anchorage buoys. No vessel shall anchor or otherwise attach, temporarily or permanently, to the bottom within Silver Glen Run or Silver Glen Springs.

(4)  Any violation of this act shall constitute a violation of the boating laws of this state and shall be punishable by issuance of a uniform boating citation as provided in s. 327.74. Any person who refuses to post a bond or accept and sign a uniform boating citation, as provided in s. 327.73(3), commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 1, 2, 3, 4, ch. 94-341; s. 26, ch. 99-245.

327.44  Interference with navigation.--No person shall anchor, operate, or permit to be anchored, except in case of emergency, or operated a vessel or carry on any prohibited activity in a manner which shall unreasonably or unnecessarily constitute a navigational hazard or interfere with another vessel. Anchoring under bridges or in or adjacent to heavily traveled channels shall constitute interference if unreasonable under the prevailing circumstances.

History.--s. 4, ch. 63-105; s. 1, ch. 65-361; s. 2, ch. 72-16.

Note.--Former s. 371.503.

327.46  Restricted areas.--

(1)  The commission shall have the authority for establishing, by rule pursuant to chapter 120, restricted areas on the waters of the state for any purpose deemed necessary for the safety of the public, including, but not limited to, boat speeds and boat traffic where such restrictions are deemed necessary based on boating accidents, visibility, tides, congestion, or other navigational hazards. Each such restricted area shall be developed in consultation and coordination with the governing body of the county or municipality in which the restricted area is located and, where required, with the United States Army Corps of Engineers. Restricted areas shall be established in accordance with procedures under chapter 120.

(2)  It is unlawful for any person to operate a vessel or to carry on any prohibited activity as defined in this chapter deemed a safety hazard or interference with navigation as provided above within a restricted water area which has been clearly marked by buoys or some other distinguishing device as a bathing or otherwise restricted area in accordance with and marked as authorized under this chapter; provided, that this section shall not apply in the case of an emergency or to patrol or rescue craft.

History.--s. 7, ch. 63-105; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 23, ch. 78-95; s. 7, ch. 81-100; s. 27, ch. 99-245.

Note.--Former s. 371.522.

327.48  Regattas, races, marine parades, tournaments, or exhibitions.--Any person directing the holding of a regatta, tournament, or marine parade or exhibition shall secure a permit from the Coast Guard when such event is held in navigable waters of the United States. A person directing any such affair in any county shall notify the sheriff of the county or the Fish and Wildlife Conservation Commission at least 15 days prior to any event in order that appropriate arrangements for safety and navigation may be assured. Any person or organization sponsoring a regatta or boat race, marine parade, tournament, or exhibition shall be responsible for providing adequate protection to the participants, spectators, and other users of the water.

History.--s. 6, ch. 59-400; s. 10, ch. 63-105; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 6, ch. 74-327; s. 29, ch. 99-245.

Note.--Former s. 371.55.

327.50  Vessel safety regulations; equipment and lighting requirements.--

(1)(a)  The owner and operator of every vessel on the waters of this state shall carry, store, maintain, and use safety equipment in accordance with current United States Coast Guard safety equipment requirements as specified in the Code of Federal Regulations, unless expressly exempted by the department.

(b)  No person shall operate a vessel less than 26 feet in length on the waters of this state unless every person under 6 years of age on board the vessel is wearing a type I, type II, or type III Coast Guard approved personal flotation device while such vessel is underway. For the purpose of this section, "underway" shall mean at all times except when a vessel is anchored, moored, made fast to the shore, or aground.

(2)  No person shall operate a vessel on the waters of this state unless said vessel is equipped with properly serviceable lights and shapes required by the navigation rules.

(3)  The use of sirens or flashing, occulting, or revolving lights on any vessel is prohibited, except as expressly provided in the navigation rules or annexes thereto.

History.--s. 8, ch. 59-400; s. 13, ch. 63-105; s. 1, ch. 65-361; s. 7, ch. 74-327; s. 8, ch. 81-100; s. 2, ch. 81-114; s. 9, ch. 84-188; s. 2, ch. 86-35; s. 5, ch. 88-133; s. 2, ch. 92-188; s. 463, ch. 95-148; s. 7, ch. 98-308.

Note.--Former s. 371.57.

327.52  Maximum loading and horsepower.--

(1)  Except for sailboats, canoes, kayaks, and inflatable boats, this section applies to all monohull motorboats less than 20 feet in length that are: manufactured or used primarily for noncommercial use; leased, rented, or chartered to another for the latter's noncommercial use; or engaged in the carrying of six or fewer passengers for hire.

(2)  No person shall sell or offer for sale any vessel described in subsection (1) unless said vessel displays the maximum capacity information as prescribed in 33 C.F.R. part 183. This shall not apply to resales, but it is the intent of this section to require dealers and manufacturers to furnish this information upon the original sale.

(3)  No person shall operate any vessel described in subsection (1) when said vessel exceeds the maximum weight capacity, maximum persons capacity, or maximum horsepower capacity. If no maximum capacity information is displayed, the capacities shall be calculated as provided in 33 C.F.R. part 183, subparts C and D. This subsection shall not preclude the finding of reckless operation under s. 327.33(1) when a vessel is operated in a grossly overloaded or overpowered condition.

History.--s. 11, ch. 59-400; s. 17, ch. 63-105; s. 1, ch. 65-361; s. 2, ch. 97-16.

Note.--Former s. 371.60.

327.53  Marine sanitation.--

(1)  Every vessel 26 feet or more in length which has an enclosed cabin with berthing facilities shall, while on the waters of the state, be equipped with a toilet. On a vessel other than a houseboat, the toilet may be portable or permanently installed. Every permanently installed toilet shall be properly attached to the appropriate United States Coast Guard certified or labeled marine sanitation device.

(2)(a)  Every houseboat shall be equipped with at least one permanently installed toilet which shall be properly connected to a United States Coast Guard certified or labeled Type III marine sanitation device. If the toilet is simultaneously connected to both a Type III marine sanitation device and to another approved marine sanitation device, the valve or other mechanism selecting between the two marine sanitation devices shall be set to direct all sewage to the Type III marine sanitation device and, while the vessel is on the waters of the state, shall be locked or otherwise secured by the boat operator, so as to prevent resetting.

(b)  A houseboat on which a Type I marine sanitation device was installed before January 30, 1980, need not install a Type III device until October 1, 1996. A houseboat on which a Type II marine sanitation device was installed before July 1, 1994, need not install a Type III device until October 1, 1996.

(3)  Every floating structure that has an enclosed living space with berthing facilities, or working space with public access, must be equipped with a permanently installed toilet properly connected to a Type III marine sanitation device or permanently attached via plumbing to shoreside sewage disposal. No structure shall be plumbed so as to permit the discharge of sewage into the waters of the state.

(4)(a)  Raw sewage shall not be discharged from any vessel, including houseboats, or any floating structure in Florida waters. The operator of any vessel which is plumbed so that a toilet may be flushed directly into the water or so that a holding tank may be emptied into the water shall, while the vessel is on the waters of the state, set the valve or other mechanism directing the sewage so as to prevent direct discharge and lock or otherwise secure the valve so as to prevent resetting.

(b)  All waste from Type III marine sanitation devices shall be disposed in an approved sewage pumpout facility.

(c)  All waste from portable toilets shall be disposed in an approved waste reception facility.

(5)  Every vessel owner, operator, and occupant shall comply with United States Coast Guard regulations pertaining to marine sanitation devices and with United States Environmental Protection Agency regulations pertaining to areas in which the discharge of sewage, treated or untreated, is prohibited.

(6)(a)  A violation of this section is a noncriminal infraction as provided in s. 327.73. Each violation shall be a separate offense. The owner and operator of any vessel shall be jointly and severally liable for the civil penalty imposed pursuant to this section.

(b)  All civil penalties imposed and collected pursuant to this section shall be deposited in the Marine Resources Conservation Trust Fund and shall be used: to implement, administer, and enforce this act; to construct, renovate, or operate pumpout stations and waste reception facilities; and to conduct a program to educate vessel operators about the problem of human body waste discharges from vessels and inform them of the location of pumpout stations and waste reception facilities.

(7)  Any vessel or floating structure operated or occupied on the waters of the state in violation of this section is declared a nuisance and a hazard to public safety and health. The owner or operator of any vessel or floating structure cited for violating this section shall, within 30 days following the issuance of the citation, correct the violation for which the citation was issued or remove the vessel or floating structure from the waters of the state. If the violation is not corrected within the 30 days and the vessel or floating structure remains on the waters of the state in violation of this section, law enforcement officers charged with the enforcement of this chapter under s. 327.70 shall apply to the appropriate court in the county in which the vessel or floating structure is located, to order or otherwise cause the removal of such vessel or floating structure from the waters of the state at the owner's expense. If the owner cannot be found or otherwise fails to pay the removal costs, the provisions of s. 328.17 shall apply. If the proceeds under s. 328.17 are not sufficient to pay all removal costs, funds appropriated from the Marine Resources Conservation Trust Fund pursuant to paragraph (6)(b) or s. 328.72(16) may be used.

(8)  Any not-for-profit corporation that is organized and existing under the laws of the state and that possesses a valid exemption from federal income taxation under s. 501(c)(3) of the United States Internal Revenue Code received prior to January 1, 1994, shall have until October 1, 1998, to comply with the provisions of this section.

History.--s. 5, ch. 94-241; s. 19, ch. 96-321; s. 29, ch. 99-289.

327.54  Liveries; safety regulations; penalty.--

(1)  A livery may not knowingly lease, hire, or rent a vessel to any person:

(a)  When the number of persons intending to use the vessel exceeds the number considered to constitute a maximum safety load for the vessel as specified on the authorized persons capacity plate of the vessel.

(b)  When the horsepower of the motor exceeds the capacity of the vessel.

(c)  When the vessel does not contain the required safety equipment required under s. 327.50.

(d)  When the vessel is not seaworthy.

(e)  When the vessel is equipped with a motor of 10 horsepower or greater, unless there is a prerental or preride instruction in the safe operation of the vessel by the livery.

(2)  A livery may not knowingly lease, hire, or rent any vessel powered by a motor of 10 horsepower or greater to any person who is required to comply with s. 327.395, unless such person presents a valid boater safety identification card to the livery.

(3)  If a vessel is unnecessarily overdue, the livery shall notify the proper authorities.

(4)  A livery may not lease, hire, or rent a personal watercraft to any person who is under 16 years of age, nor may it lease, hire, or rent such watercraft or other vessel to any other person, unless the livery displays boating safety information about the safe and proper operation of vessels and requires a signature by the lessee that he or she has received instruction in the safe handling of the personal watercraft in compliance with standards established by the department.

(5)  Any person convicted of violating this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(6)  When the livery has complied with subsections (1), (2), (3), and (4), its liability ceases and the person leasing the vessel from the livery is liable for any violations of this chapter and is personally liable for any accident or injury occurring while in charge of such vessel.

History.--s. 12, ch. 63-105; s. 1, ch. 65-361; s. 303, ch. 71-136; s. 10, ch. 84-188; s. 4, ch. 89-136; s. 2, ch. 96-187; s. 42, ch. 97-96.

Note.--Former s. 371.561.

327.56  Safety and marine sanitation equipment inspections; qualified.--

(1)  No officer shall board any vessel to make a safety or marine sanitation equipment inspection if the owner or operator is not aboard. When the owner or operator is aboard, an officer may board a vessel with consent or when the officer has probable cause or knowledge to believe that a violation of a provision of this chapter has occurred or is occurring. An officer may board a vessel when the operator refuses or is unable to display the safety or marine sanitation equipment required by law, if requested to do so by a law enforcement officer, or when the safety or marine sanitation equipment to be inspected is permanently installed and is not visible for inspection unless the officer boards the vessel.

(2)  Inspection of floating structures for compliance with this section shall be as provided in s. 403.091.

History.--s. 9, ch. 59-400; s. 14, ch. 63-105; s. 1, ch. 65-361; s. 11, ch. 84-188; s. 6, ch. 94-241; s. 954, ch. 95-148.

Note.--Former s. 371.58.

327.58  Jurisdiction.--The safety regulations included under this chapter shall apply to all vessels, except as specifically excluded, operating upon the waters of this state.

History.--s. 1, ch. 65-361; s. 27, ch. 79-334; s. 10, ch. 81-100; s. 79, ch. 82-226.

Note.--Former s. 371.66.

327.59  Marina evacuations.--

(1)  After June 1, 1994, marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning, in order to ensure that protecting the lives and safety of vessel owners is placed before interests of protecting property.

(2)  Nothing in this section may be construed to restrict the ability of an owner of a vessel or the owner's authorized representative to remove a vessel voluntarily from a marina at any time or to restrict a marina owner from dictating the kind of cleats, ropes, fenders, and other measures that must be used on vessels as a condition of use of a marina.

History.--s. 22, ch. 93-211; s. 11, ch. 95-146; s. 464, ch. 95-148; s. 2, ch. 95-150.

327.60  Local regulations; limitations.--

(1)  The provisions of ss. 327.01, 327.02, 327.30-327.40, 327.44-327.50, 327.54, 327.56, 327.65, 328.40-328.48, 328.52-328.58, 328.62, and 328.64 shall govern the operation, equipment, and all other matters relating thereto whenever any vessel shall be operated upon the waterways or when any activity regulated hereby shall take place thereon. Nothing in these sections shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels, except that no such ordinance or local law may apply to the Florida Intracoastal Waterway and except that such ordinances or local laws shall be operative only when they are not in conflict with this chapter or any amendments thereto or regulations thereunder.

(2)  Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions. However, local governmental authorities are prohibited from regulating the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation.

History.--s. 10, ch. 59-400; s. 16, ch. 63-105; s. 1, ch. 65-361; s. 3, ch. 72-55; s. 2, ch. 83-20; s. 38, ch. 95-143; s. 30, ch. 99-289.

Note.--Former s. 371.59.

327.65  Muffling devices.--

(1)  The exhaust of every internal combustion engine used on any vessel operated on the waters of this state shall be effectively muffled by equipment so constructed and used as to muffle the noise of the exhaust in a reasonable manner. The use of cutouts is prohibited, except for vessels competing in a regatta or official boat race, and for such vessels while on trial runs.

(2)(a)  Any county wishing to impose additional noise pollution and exhaust regulations on vessels may, pursuant to s. 327.60(1), adopt by county ordinance the following regulations:

1.  No person shall operate or give permission for the operation of any vessel on the waters of any county or on a specified portion of the waters of any county, including the Florida Intracoastal Waterway, which has adopted the provisions of this section in such a manner as to exceed the following sound levels at a distance of 50 feet from the vessel: for all vessels, a maximum sound level of 90 dB A.

2.  Any person who refuses to submit to a sound level test when requested to do so by a law enforcement officer is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b)  The following words and phrases, when used in this section, shall have the meanings respectively assigned to them in this subsection.

1.  "dB A" means the composite abbreviation for the A-weighted sound level and the unit of sound level, the decibel.

2.  "Sound level" means the A-weighted sound pressure level measured with fast response using an instrument complying with the specification for sound level meters of the American National Standards Institute, Inc., or its successor bodies, except that only a weighting and fast dynamic response need be provided.

History.--s. 7, ch. 59-400; s. 11, ch. 63-105; s. 1, ch. 65-361; s. 5, ch. 86-35; s. 47, ch. 91-224.

Note.--Former s. 371.56.

327.70  Enforcement of this chapter and chapter 328.--

(1)  This chapter and chapter 328 shall be enforced by the Division of Law Enforcement of the Fish and Wildlife Conservation Commission and its officers, the sheriffs of the various counties and their deputies, and any other authorized law enforcement officer, all of whom may order the removal of vessels deemed to be an interference or a hazard to public safety, enforce the provisions of this chapter and chapter 328, or cause any inspections to be made of all vessels in accordance with this chapter and chapter 328.

(2)  Such officers shall have the power and duty to issue such orders and to make such investigations, reports, and arrests in connection with any violation of the provisions of this chapter and chapter 328 as are necessary to effectuate the intent and purpose of this chapter and chapter 328.

(3)  The Fish and Wildlife Conservation Commission or any other law enforcement agency may make any investigation necessary to secure information required to carry out and enforce the provisions of this chapter and chapter 328.

History.--s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; s. 3, ch. 72-16; s. 10, ch. 74-327; s. 3, ch. 78-181; ss. 10, 12, ch. 84-188; s. 30, ch. 99-245.

Note.--Former s. 371.67.

327.71  Exemption.--The commission may, if it finds that federal law imposes less restrictive requirements than provided herein or if it determines that boating safety will not be adversely affected, issue temporary exemptions from any provision of this chapter or rules established hereunder, on such terms and conditions as it considers appropriate.

History.--s. 11, ch. 81-100; s. 31, ch. 99-245.

327.72  Penalties.--Any person failing to comply with the provisions of this chapter or chapter 328 not specified in s. 327.73 or not paying the fine specified in said section within 10 days, except as otherwise provided in this chapter or chapter 328, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 1, ch. 65-361; s. 304, ch. 71-136; s. 1, ch. 78-181; s. 3, ch. 80-266; s. 13, ch. 84-188; s. 4, ch. 86-35; s. 48, ch. 91-224; s. 3, ch. 99-162.

Note.--Former s. 371.68.

327.73  Noncriminal infractions.--

(1)  Violations of the following provisions of the vessel laws of this state are noncriminal infractions:

(a)  Section 328.46, relating to operation of unregistered and unnumbered vessels.

(b)  Section 328.48(4), relating to display of number and possession of registration certificate.

(c)  Section 328.48(5), relating to display of decal.

(d)  Section 328.52(2), relating to display of number.

(e)  Section 328.54, relating to spacing of digits and letters of identification number.

(f)  Section 328.60, relating to military personnel and registration of vessels.

(g)  Section 328.72(14), relating to operation with an expired registration.

(h)  Section 327.33(2), relating to careless operation.

(i)  Section 327.37, relating to water skiing, aquaplaning, parasailing, and similar activities.

(j)  Section 327.44, relating to interference with navigation.

(k)  Violations relating to restricted areas and speed limits:

1.  Established by the ¹department pursuant to s. 327.46.

2.  Established by local governmental authorities pursuant to s. 327.22 or s. 327.60.

3.  Speed limits established pursuant to s. 370.12(2).

(l)  Section 327.48, relating to regattas and races.

(m)  Section 327.50(1) and (2), relating to required safety equipment, lights, and shapes.

(n)  Section 327.65, relating to muffling devices.

(o)  Section 327.33(3)(b), relating to navigation rules.

(p)  Section 327.39(1), (2), (3), and (5), relating to personal watercraft.

(q)  Section 327.53(1), (2), and (3), relating to marine sanitation.

(r)  Section 327.53(4), (5), and (7), relating to marine sanitation, for which the civil penalty is $250.

(s)  Section 327.395, relating to boater safety education.

(t)  Section 327.52(3), relating to operation of overloaded or overpowered vessels.

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 who fails to appear or otherwise properly respond to a uniform boating citation shall, in addition to the charge relating to the violation of the boating laws of this state, be charged with the offense of failing to respond to such citation and, upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A written warning to this effect shall be provided at the time such uniform boating citation is issued.

(2)  Any person cited for an infraction under this section may:

(a)  Post a bond, which shall be equal in amount to the applicable civil penalty; or

(b)  Sign and accept a citation indicating a promise to appear.

The officer may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty.

(3)  Any person who willfully refuses to post a bond or accept and sign a summons is guilty of a misdemeanor of the second degree.

(4)  Any person charged with a noncriminal infraction under this section may:

(a)  Pay the civil penalty, either by mail or in person, within 10 days of the date of receiving the citation; or,

(b)  If he or she has posted bond, forfeit bond by not appearing at the designated time and location.

If the person cited follows either of the above procedures, he or she shall be deemed to have admitted the infraction and to have waived the right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings.

(5)  Any person electing to appear before the county court or who is required so to appear shall be deemed to have waived the limitations on the civil penalty specified in subsection (1). The court, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the court may impose a civil penalty not to exceed $500.

(6)  At a hearing under this chapter the commission of a charged infraction must be proved beyond a reasonable doubt.

(7)  If a person is found by the hearing official to have committed an infraction, he or she may appeal that finding to the circuit court.

(8)  All fees and civil penalties assessed and collected pursuant to this section shall be deposited into the Marine Resources Conservation Trust Fund for boating safety education purposes.

History.--s. 3, ch. 86-35; s. 7, ch. 87-392; s. 6, ch. 88-133; s. 4, ch. 88-144; s. 5, ch. 89-136; s. 32, ch. 91-221; s. 2, ch. 93-83; s. 2, ch. 93-254; s. 7, ch. 94-241; s. 955, ch. 95-148; s. 3, ch. 96-187; s. 60, ch. 96-413; s. 3, ch. 97-16; s. 2, ch. 99-162; s. 31, ch. 99-289.

¹Note.--References to the Department of Environmental Protection were redesignated to the Fish and Wildlife Conservation Commission in s. 327.46 by s. 27, ch. 99-245.

327.731  Mandatory education for violators.--

(1)  Every person convicted of a criminal violation of this chapter, every person convicted of a noncriminal infraction under this chapter if the infraction resulted in a reportable boating accident, and every person convicted of two noncriminal infractions as defined in s. 327.73(1)(h) through (k), (m) through (p), (s), and (t), said infractions occurring within a 12-month period, must:

(a)  Enroll in, attend, and successfully complete, at his or her own expense, a boating safety course that meets minimum standards established by the commission by rule; however, the commission may provide by rule pursuant to chapter 120 for waivers of the attendance requirement for violators residing in areas where classroom presentation of the course is not available;

(b)  File with the commission within 90 days proof of successful completion of the course;

(c)  Refrain from operating a vessel until he or she has filed the proof of successful completion of the course with the commission.

Any person who has successfully completed an approved boating course shall be exempt from these provisions upon showing proof to the commission as specified in paragraph (b).

(2)  For the purposes of this section, "conviction" means a finding of guilt, or the acceptance of a plea of guilty or nolo contendere, regardless of whether or not adjudication was withheld or whether imposition of sentence was withheld, deferred, or suspended. Any person who operates a vessel on the waters of this state in violation of the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3)  The commission shall print on the reverse side of the defendant's copy of the boating citation a notice of the provisions of this section. Upon conviction, the clerk of the court shall notify the defendant that it is unlawful for him or her to operate any vessel until he or she has complied with this section, but failure of the clerk of the court to provide such a notice shall not be a defense to a charge of unlawful operation of a vessel under subsection (2).

History.--s. 7, ch. 88-133; s. 49, ch. 91-224; s. 465, ch. 95-148; s. 4, ch. 96-187; s. 9, ch. 98-308; s. 4, ch. 99-162; s. 32, ch. 99-245.

327.74  Uniform boating citations.--

(1)  The 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.

(2)  Courts, enforcement agencies, and the commission are jointly responsible to account for all uniform boating citations in accordance with the procedures promulgated by the commission.

(3)  Every law enforcement officer, upon issuing a boating citation to an alleged violator of any provision of the boating laws of this state or any boating ordinance of any municipality, shall deposit the original and one copy of such boating citation with a court having jurisdiction over the alleged offense or with its traffic violations bureau within 5 days after issuance to the violator.

(4)  The chief administrative officer of every law enforcement agency shall require the return to him or her of the commission record copy of every boating citation issued by an officer under his or her supervision to an alleged violator of any boating law or ordinance and all copies of every boating citation which has been spoiled or upon which any entry has been made and not issued to an alleged violator.

(5)  Upon the deposit of the original and one copy of such boating citation with a court having jurisdiction over the alleged offense or with its traffic violations bureau as aforesaid, the original or copy of such boating citation may be disposed of only by trial in the court or other official action by a judge of the court, including forfeiture of the bail, or by the deposit of sufficient bail with, or payment of a fine to, the traffic violations bureau by the person to whom such boating citation has been issued by the law enforcement officer.

(6)  The chief administrative officer shall transmit, on a form approved by the commission, the commission record copy of the uniform boating citation to the commission within 5 days after submission of the original and one copy to the court. A copy of such transmittal shall also be provided to the court having jurisdiction for accountability purposes.

(7)  It is unlawful and official misconduct for any law enforcement officer or other officer or public employee to dispose of a boating citation or copies thereof or of the record of the issuance of the same in a manner other than as required in this section.

(8)  Such citations shall not be admissible evidence in any trial.

(9)  If a uniform boating citation has not been issued with respect to a criminal boating offense, and the prosecution is by affidavit, information, or indictment, the prosecutor shall direct the arresting officer to prepare a citation. In the absence of an arresting officer, the prosecutor shall prepare the citation. For the purpose of this subsection, the term "arresting officer" means the law enforcement officer who apprehended or took into custody the alleged offender.

(10)  Upon final disposition of any alleged offense for which a uniform boating citation has been issued, the court shall, within 10 days, certify said disposition to the commission.

History.--s. 8, ch. 87-392; s. 6, ch. 89-136; s. 466, ch. 95-148; s. 33, ch. 99-245.

327.803  Boating Advisory Council.--

(1)  The Boating Advisory Council is created within the Fish and Wildlife Conservation Commission and shall be composed of 16 members. The members include:

(a)  One representative from the Fish and Wildlife Conservation Commission, who shall serve as the chair of the council.

(b)  One representative each from the Department of Environmental Protection, the United States Coast Guard Auxiliary, the United States Power Squadron, and the inland navigation districts.

(c)  One representative of manatee protection interests, one representative of the marine industries, two representatives of water-related environmental groups, one representative of marine manufacturers, one representative of commercial vessel owners or operators, one representative of sport boat racing, and two representatives of the boating public, each of whom shall be nominated by the executive director of the Fish and Wildlife Conservation Commission and appointed by the Governor to serve staggered 2-year terms.

(d)  One member of the House of Representatives, who shall be appointed by the Speaker of the House of Representatives.

(e)  One member of the Senate, who shall be appointed by the President of the Senate.

(2)  The council shall meet at the call of the chair, at the request of a majority of its membership, or at such times as may be prescribed by rule.

(3)  The purpose of the council is to make recommendations to the Fish and Wildlife Conservation Commission and the Department of Community Affairs regarding issues affecting the boating community, including, but not limited to, issues related to:

(a)  Boating safety education.

(b)  Boating-related facilities, including marinas and boat testing facilities.

(c)  Boat usage.

(4)  Members of the council shall serve without compensation.

History.--s. 13, ch. 94-241; s. 34, ch. 99-245.

327.804  Compilation of statistics on boating accidents and violations.--The Fish and Wildlife Conservation Commission shall compile statistics on boating accidents and boating violations of the age groups of persons affected by chapter 96-187, Laws of Florida.

History.--s. 5, ch. 96-187; s. 35, ch. 99-245.