Senate Bill sb2156c1

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    Florida Senate - 2005                           CS for SB 2156

    By the Committee on Transportation; and Senator Baker





    596-1955-05

  1                      A bill to be entitled

  2         An act relating to vessels; amending s. 327.59,

  3         F.S.; authorizing marina owners, operators,

  4         employees, and agents to take actions to secure

  5         vessels during severe weather and to charge

  6         fees and be held harmless for such service;

  7         authorizing contract provisions and notice

  8         relating to removing or securing vessels;

  9         amending s. 328.17, F.S.; providing for

10         possessory liens for marinas on certain

11         abandoned vessels; providing for attachment of

12         the lien and recovery of certain costs under

13         certain circumstances; providing that a marina

14         may satisfy its possessory lien by giving

15         notice to certain individuals; requiring the

16         marina to conduct a good-faith lien search of

17         vessel registration records for vessels

18         registered outside this state; authorizing the

19         marina to sell the vessel if the fees, costs,

20         and interest are not paid within a specified

21         time after the marina gives notice to the

22         vessel owner; authorizing the owner or the

23         lienholder to satisfy the lien; amending s.

24         376.11, F.S.; revising provisions relating to

25         the Florida Coastal Protection Trust Fund to

26         conform to changes made by the act; amending s.

27         376.15, F.S.; revising provisions relating to

28         the removal of abandoned and derelict vessels;

29         specifying officers authorized to remove such

30         vessels; providing that certain costs shall be

31         recoverable; requiring the Department of Legal

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    Florida Senate - 2005                           CS for SB 2156
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 1         Affairs to represent the Fish and Wildlife

 2         Conservation Commission in certain actions;

 3         expanding eligibility for disbursement of grant

 4         funds for the removal of derelict vessels;

 5         amending s. 403.813, F.S.; providing exemptions

 6         from permitting for certain floating vessel

 7         platforms; amending s. 705.101, F.S.; defining

 8         certain vessels as abandoned property; amending

 9         s. 823.11, F.S.; revising provisions relating

10         to abandoned and derelict vessels and the

11         removal of such vessels; specifying officers

12         authorized to remove such vessels; providing

13         that vessel removal may be funded by certain

14         grants; requiring the Department of Legal

15         Affairs to represent the Fish and Wildlife

16         Conservation Commission in certain actions;

17         deleting a provision authorizing the commission

18         to delegate certain authority to local

19         governments under certain circumstances;

20         providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Section 327.59, Florida Statutes, is

25  amended to read:

26         327.59  Marina evacuations.--

27         (1)  After June 1, 1994, marinas may not adopt,

28  maintain, or enforce policies pertaining to evacuation of

29  vessels which require vessels to be removed from marinas

30  following the issuance of a hurricane watch or warning, in

31  

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    Florida Senate - 2005                           CS for SB 2156
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 1  order to ensure that protecting the lives and safety of vessel

 2  owners is placed before interests of protecting property.

 3         (2)  Nothing in this section may be construed to

 4  restrict the ability of an owner of a vessel or the owner's

 5  authorized representative to remove a vessel voluntarily from

 6  a marina at any time or to restrict a marina owner from

 7  dictating the kind of cleats, ropes, fenders, and other

 8  measures that must be used on vessels as a condition of use of

 9  a marina. After a tropical storm or hurricane watch has been

10  issued, a marina owner, operator, employee, or agent may take

11  actions to further secure any vessel within the marina to

12  minimize damage to a vessel, the marina property, and the

13  environment. The marina owner, operator, employee, or agent

14  may charge reasonable fees for further securing of a vessel,

15  shall not be held liable for any damage incurred to a vessel

16  from such storms or hurricanes, and are held harmless as a

17  result of such actions.

18         (3)  Notwithstanding any other provision of this

19  section, in order to protect marina property a marina owner by

20  contract may provide that if a boat owner fails to promptly

21  remove a vessel from a marina after issuance of a hurricane

22  watch or warning, the marina owner, operator, or an employee

23  or agent of the owner or operator may remove the vessel from

24  its slip or take whatever actions are deemed necessary in

25  order to properly secure the vessel. A marina owner, operator,

26  employee, or agent may charge the boat owner a reasonable fee

27  for any such services rendered. Any marina seeking to add such

28  a provision to a contract must provide notice to the boat

29  owner in any such contract in a font of at least 10-point

30  type. The notice must be in substantially the following form:

31  

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 1                       NOTICE TO BOAT OWNER

 2  

 3         The undersigned hereby informs you that in the

 4         event you fail to remove your vessel from the

 5         marina promptly after the issuance of a

 6         hurricane watch or warning for__________,

 7         Florida, under Florida law the undersigned or

 8         his or her employees or agents are authorized

 9         to remove your vessel from its slip or take any

10         and all other actions deemed appropriate by the

11         undersigned or his or her employees or agents

12         in order to secure your vessel and protect

13         marina property. You are further notified that

14         you may be charged a reasonable fee for any

15         such action.

16         Section 2.  Subsections (4), (5), (7), (10), (11), and

17  (12) of section 328.17, Florida Statutes, are amended to read:

18         328.17  Nonjudicial sale of vessels.--

19         (4)  A marina, as defined in s. 327.02(19), shall have:

20         (a)  A possessory lien upon any vessel for storage

21  fees, dockage fees, repairs, improvements, or other

22  work-related storage charges, and for expenses necessary for

23  preservation of the vessel or expenses reasonably incurred in

24  the sale or other disposition of the vessel. The possessory

25  lien shall attach as of the date the vessel is brought to the

26  marina, or as of the date the vessel first occupies rental

27  space at the marina facility.

28         (b)  A possessory lien upon any vessel in a wrecked,

29  junked, or substantially dismantled condition which has been

30  left docked, grounded, beached, or otherwise abandoned at a

31  marina, without the consent of the marina owner, for the

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    Florida Senate - 2005                           CS for SB 2156
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 1  expenses reasonably incurred by the marina in the removal and

 2  disposal of the vessel. The possessory lien attaches on the

 3  date the vessel is discovered at the marina facility. If the

 4  funds recovered from the sale of the vessel or from the scrap

 5  or salvage value of the vessel are insufficient to cover the

 6  expenses reasonably incurred by the marina in removing and

 7  disposing of the vessel, all costs in excess of funds

 8  recovered shall be recoverable from the owner of the vessel.

 9  However, in the event of default, the marina must give notice

10  to persons who hold perfected security interests against the

11  vessel under the Uniform Commercial Code in which the owner is

12  named as the debtor.

13         (5)  A marina's possessory lien may be satisfied as

14  follows:

15         (a)1.  The marina shall provide written notice to the

16  vessel's owner, delivered in person or by certified mail to

17  the owner's last known address. The notice shall also be and

18  conspicuously posted at the marina and on the vessel.

19         2.  In addition to the notice provided to the vessel

20  owner under subparagraph 1., the marina shall provide written

21  notice to each person or entity that:

22         a.  Holds a security interest on the vessel as shown in

23  the records of the Department of Highway Safety and Motor

24  Vehicles with respect to state-titled vessels;

25         b.  Holds a preferred ship mortgage or has filed a

26  claim of lien with the United States Coast Guard Vessel

27  Documentation Center;

28         c.  Holds a security interest against the vessel under

29  the Uniform Commercial Code; or

30         d.  Has perfected a lien against the vessel by filing a

31  judgment lien certificate under ss. 55.201-55.209.

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    Florida Senate - 2005                           CS for SB 2156
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 1         3.  When a vessel displays a foreign country

 2  identification or displays registration numbers from a state

 3  other than this state, the marina shall conduct a reasonable

 4  lien search of the vessel registration records in the

 5  jurisdiction of registry to determine if there is a lienholder

 6  who is entitled to notice under subparagraph 2.  Failure to

 7  discover a foreign national or non-Florida United States

 8  lienholder after making a good-faith effort to conduct a lien

 9  search does not prevent the sale or removal of a vessel from

10  the marina to satisfy the possessory lien of the marina or a

11  purchaser, in good faith, from taking title of the vessel,

12  under subsections (7) or (11).

13         4.  The requirements of subparagraph 2. are satisfied

14  if the marina:

15         a.  Obtains a copy of the title for the vessel and

16  trailer, if applicable, from the Department of Highway Safety

17  and Motor Vehicles or other agency where the vessel is

18  registered;

19         b.  Obtains an abstract from the United States Coast

20  Guard for a vessel that is documented as defined in 46 U.S.C.

21  s. 301.01;

22         c.  Performs a search of liens as provided under the

23  Uniform Commercial Code;

24         d.  Performs a search of current judgment lien

25  certificates as provided under state law; and

26         e.  Complies with subparagraph (5)(a)3. with regard to

27  vessels registered in a foreign country or in a state other

28  than this state.

29         5.  The written notice to the vessel owner and

30  lienholders required by this paragraph must be made at least

31  60 days before any sale of the vessel under this section.

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    Florida Senate - 2005                           CS for SB 2156
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 1  recorded lienholder of such vessel registered with this state

 2  as shown by the records of the Department of Highway Safety

 3  and Motor Vehicles, at least 30 days prior to the proposed

 4  sale.

 5         (b)  The notice shall include:

 6         1.  An itemized statement of the marina's claim,

 7  showing the sum due at the time of the notice and the date

 8  upon which the sum became due.

 9         2.  A description of the vessel.

10         3.  A demand for payment.

11         4.  A conspicuous statement that, unless the claim is

12  paid within the time stated in the notice, the vessel will be

13  advertised for sale or other disposition and will be sold or

14  otherwise disposed of at a specified time and place.

15         5.  The name, street address, and telephone number of

16  the marina that the owner may contact to respond to the

17  notice.

18         (7)  If the fees, and costs, and late-payment interest

19  that give rise to such a lien are due and unpaid 60 120 days

20  after the vessel owner and lienholder are is given written

21  notice, the marina may sell the vessel, including its

22  machinery, rigging, and accessories as provided for in

23  subsection (8), or the marina may, at its option, remove the

24  vessel from the marina or from the waters of the state at the

25  owner's expense under paragraph (4)(b).

26         (10)  Before any sale or other disposition of the

27  vessel under pursuant to this section, the owner or lienholder

28  may pay the amount necessary to satisfy the lien and the

29  reasonable expenses and late-payment interest incurred under

30  this section and thereby redeem and take possession of the

31  vessel. Upon receipt of the such payment, the marina shall

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 1  return the property to the owner or lienholder making the

 2  payment and thereafter shall have no liability to any person

 3  with respect to such vessel.

 4         (11)  Unless otherwise provided by law, a purchaser in

 5  good faith of a vessel sold to satisfy a lien provided for in

 6  this section takes the property free of any claims other than

 7  a prior lien perfected under state or federal law the Uniform

 8  Commercial Code, despite noncompliance by the marina with the

 9  requirements of this section.

10         (12)  In the event of a sale under this section, the

11  marina may satisfy its lien from the proceeds of the sale,

12  provided the marina's lien has priority over all other liens

13  on the vessel other than a prior lien perfected under the

14  Uniform Commercial Code. The lien rights of secured

15  lienholders are automatically also attach transferred to the

16  remaining proceeds of the sale. The balance, if any, shall be

17  held by the marina for delivery on demand to the owner. A

18  notice of any balance shall be delivered by the marina to the

19  owner in person or by certified mail to the last known address

20  of the owner. If the owner does not claim the balance of the

21  proceeds within 1 year after the date of sale, the proceeds

22  shall be deemed abandoned, and the marina shall have no

23  further obligation with regard to the payment of the balance.

24  In the event that the marina's lien does not have priority

25  over all other liens, the sale proceeds shall be held for the

26  benefit of the holders of those liens having priority. A

27  notice of the amount of the sale proceeds shall be delivered

28  by the marina to the owner or secured lienholder in person or

29  by certified mail to the owner's or the secured lienholder's

30  last known address. If the owner or the secured lienholder

31  does not claim the sale proceeds within 1 year after the date

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    Florida Senate - 2005                           CS for SB 2156
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 1  of sale, the proceeds shall be deemed abandoned, and the owner

 2  or the secured lienholder shall have no further obligation

 3  with regard to the payment of the proceeds.

 4         Section 3.  Paragraph (g) of subsection (4) of section

 5  376.11, Florida Statutes, is amended to read:

 6         376.11  Florida Coastal Protection Trust Fund.--

 7         (4)  Moneys in the Florida Coastal Protection Trust

 8  Fund shall be disbursed for the following purposes and no

 9  others:

10         (g)  The funding of a grant program to coastal local

11  governments, pursuant to s. 376.15(2)(b) and (c), for the

12  removal of derelict vessels from the public waters of the

13  state.

14         Section 4.  Section 376.15, Florida Statutes, is

15  amended to read:

16         376.15  Derelict vessels; removal from public waters.--

17         (1)  It is unlawful for any person, firm, or

18  corporation to store or leave any vessel, as defined in s.

19  327.02(37), in a wrecked, junked, or substantially dismantled

20  condition or abandoned upon any public waters or at any port

21  in this state without the consent of the agency having

22  jurisdiction thereof or docked or grounded at any private

23  property without the consent of the owner of the private

24  property.

25         (2)(a)  The Fish and Wildlife Conservation Commission

26  and its officers and all law enforcement officers as specified

27  in s. 327.70 are is hereby designated as the agency of the

28  state authorized and empowered to remove any derelict vessel

29  as described in subsection (1) from public waters. All costs

30  incurred by the commission or other law enforcement agency in

31  the removal of any abandoned or derelict vessel shall be

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 1  recoverable against the owner of the vessel. The Department of

 2  Legal Affairs shall represent the commission in such actions.

 3         (b)  The commission may establish a program to provide

 4  grants to coastal local governments for the removal of

 5  derelict vessels from the public waters of the state. The

 6  program shall be funded from the Florida Coastal Protection

 7  Trust Fund. Notwithstanding the provisions in s. 216.181(11),

 8  funds available for grants may only be authorized by

 9  appropriations acts of the Legislature.

10         (c)  The commission shall adopt by rule procedures for

11  submitting a grant application and criteria for allocating

12  available funds. Such criteria shall include, but not be

13  limited to, the following:

14         1.  The number of derelict vessels within the

15  jurisdiction of the applicant.

16         2.  The threat posed by such vessels to public health

17  or safety, the environment, navigation, or the aesthetic

18  condition of the general vicinity.

19         3.  The degree of commitment of the local government to

20  maintain waters free of abandoned and derelict vessels and to

21  seek legal action against those who abandon vessels in the

22  waters of the state.

23         (d)  This section shall constitute the authority of the

24  commission for such removal, but is not intended to be in

25  contravention of any applicable federal act.

26         (e)  The Department of Legal Affairs shall represent

27  the Fish and Wildlife Conservation Commission in such actions.

28         Section 5.  Paragraph (s) of subsection (2) of section

29  403.813, Florida Statutes, is amended to read:

30         403.813  Permits issued at district centers;

31  exceptions.--

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 1         (2)  A permit is not required under this chapter,

 2  chapter 373, chapter 61-691, Laws of Florida, or chapter 25214

 3  or chapter 25270, 1949, Laws of Florida, for activities

 4  associated with the following types of projects; however,

 5  except as otherwise provided in this subsection, nothing in

 6  this subsection relieves an applicant from any requirement to

 7  obtain permission to use or occupy lands owned by the Board of

 8  Trustees of the Internal Improvement Trust Fund or any water

 9  management district in its governmental or proprietary

10  capacity or from complying with applicable local pollution

11  control programs authorized under this chapter or other

12  requirements of county and municipal governments:

13         (s)  The construction, installation, operation, or

14  maintenance of floating vessel platforms or floating boat

15  lifts, provided that such structures:

16         1.  Float at all times in the water for the sole

17  purpose of supporting a vessel so that the vessel is out of

18  the water when not in use;

19         2.  Are wholly contained within a boat slip previously

20  permitted under ss. 403.91-403.929, 1984 Supplement to the

21  Florida Statutes 1983, as amended, or part IV of chapter 373;

22  are, or, when associated with a dock that is exempt under this

23  subsection or a permitted dock with no defined boat slip and,

24  do not exceed a combined total of 500 square feet, or 200

25  square feet in an Outstanding Florida Water; or are attached

26  to a bulkhead on a parcel of land where there is no other

27  docking structure and do not exceed a combined total of 1,000

28  square feet outside of Outstanding Florida Waters, 500 square

29  feet within an Outstanding Florida Water that is not an

30  aquatic preserve, or 200 square feet within an aquatic

31  preserve;

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 1         3.  Are not used for any commercial purpose or for

 2  mooring vessels that remain in the water when not in use, and

 3  do not substantially impede the flow of water, create a

 4  navigational hazard, or unreasonably infringe upon the

 5  riparian rights of adjacent property owners, as defined in s.

 6  253.141;

 7         4.  Are constructed and used so as to minimize adverse

 8  impacts to submerged lands, wetlands, shellfish areas, aquatic

 9  plant and animal species, and other biological communities,

10  including locating such structures in areas where no

11  seagrasses are least dense exist if such areas are present

12  adjacent to the dock or bulkhead; and

13         5.  Are not constructed in areas specifically

14  prohibited for boat mooring under conditions of a permit

15  issued in accordance  with ss. 403.91-403.929, 1984 Supplement

16  to the Florida Statutes 1983, as amended, or part IV of

17  chapter 373, or other form of authorization issued by a local

18  government.

19  

20  Structures that qualify for this exemption are relieved from

21  any requirement to obtain permission to use or occupy lands

22  owned by the Board of Trustees of the Internal Improvement

23  Trust Fund and shall not be subject to any permitting

24  requirements, registration requirements, or other more

25  stringent regulation by any local government. The exemption

26  provided in this paragraph shall be in addition to the

27  exemption provided in paragraph (b). By January 1, 2006 2003,

28  the department shall adopt a general permit by rule for the

29  construction, installation, operation, or maintenance of those

30  floating vessel platforms or floating boat lifts that do not

31  qualify for the exemption provided in this paragraph but do

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 1  not cause significant adverse impacts to occur individually or

 2  cumulatively. The issuance of such general permit shall also

 3  constitute permission to use or occupy lands owned by the

 4  Board of Trustees of the Internal Improvement Trust Fund.

 5  Structures that qualify for Upon the adoption of the rule

 6  creating such general permit are not subject to any permitting

 7  requirement, registration requirement, or other more stringent

 8  regulation by any, no local government shall impose a more

 9  stringent regulation on floating vessel platforms or floating

10  boat lifts covered by such general permit.

11         Section 6.  Subsection (3) of section 705.101, Florida

12  Statutes, is amended to read:

13         705.101  Definitions.--As used in this chapter:

14         (3)  "Abandoned property" means all tangible personal

15  property that does not have an identifiable owner and that has

16  been disposed on public property in a wrecked, inoperative, or

17  partially dismantled condition or has no apparent intrinsic

18  value to the rightful owner. Vessels determined to be derelict

19  by the Fish and Wildlife Conservation Commission or a county

20  or municipality in accordance with the provisions of s. 376.15

21  or s. 823.11 are included within this definition.

22         Section 7.  Section 823.11, Florida Statutes, is

23  amended to read:

24         823.11  Abandoned and derelict vessels; removal;

25  penalty.--

26         (1)  It is unlawful for any person, firm, or

27  corporation to store or leave any vessel as defined in s.

28  327.02(37) by maritime law in a wrecked, junked, or

29  substantially dismantled condition or abandoned upon or in any

30  public water or at any port in this state without the consent

31  of the agency having jurisdiction thereof, or docked or

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 1  grounded at any private property without the consent of the

 2  owner of the private such property.

 3         (2)  The Fish and Wildlife Conservation Commission and

 4  its officers and all law enforcement officers as specified in

 5  s. 327.70 are is designated as the agency of the state

 6  authorized and empowered to remove or cause to be removed any

 7  abandoned or derelict vessel from public waters in any

 8  instance when the same obstructs or threatens to obstruct

 9  navigation or in any way constitutes a danger to the

10  environment. Removal of vessels pursuant to this section may

11  be funded by grants provided pursuant to s. 376.15. All costs

12  incurred by the commission in the removal of any abandoned or

13  derelict vessel as set out above shall be recoverable against

14  the owner thereof. The Department of Legal Affairs shall

15  represent the commission in such actions. Pursuant to an

16  agreement with the governing body of a county or municipality,

17  and upon a finding by the commission that the county or

18  municipality is competent to undertake said responsibilities,

19  the commission may delegate to the county or municipality its

20  authority to remove or cause to be removed an abandoned or

21  derelict vessel from public waters within the county or

22  municipality.

23         (3)  Any person, firm, or corporation violating this

24  act is guilty of a misdemeanor of the first degree and shall

25  be punished as provided by law.

26         Section 8.  This act shall take effect upon becoming a

27  law.

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2156

 3                                 

 4  This CS removes language establishing a vessel owner's
    liability to a marina for damages caused by the vessel after
 5  the issuance of a hurricane watch or warning.

 6  The CS provides marina owners may by contract allow for the
    removal of a vessel from its slip to protect marina property.
 7  
    The CS makes revisions to the notification and procedural
 8  requirements involving the nonjudicial sale of vessels by
    marinas.
 9  
    The CS exempts certain floating vessel platforms or floating
10  boat lifts from environmental permitting requirements of
    Chapter 373, F.S.
11  

12  

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15  

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31  

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