Senate Bill sb2128

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    Florida Senate - 2006                                  SB 2128

    By Senator Baker





    20-1134-06

  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 are

31         recoverable; requiring the Department of Legal

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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 by the Department of

 7         Environmental Protection for certain floating

 8         vessel platforms; directing the department to

 9         adopt a general permit for certain platforms;

10         revising provisions that prohibit more

11         stringent regulation by a local government;

12         amending s. 705.101, F.S.; defining certain

13         vessels as abandoned property; amending s.

14         823.11, F.S.; revising provisions relating to

15         abandoned and derelict vessels and the removal

16         of such vessels; specifying which officers may

17         remove such vessels; providing that vessel

18         removal may be funded by certain grants;

19         requiring the Department of Legal Affairs to

20         represent the Fish and Wildlife Conservation

21         Commission in certain actions; deleting a

22         provision authorizing the commission to

23         delegate certain authority to local governments

24         under certain circumstances; providing an

25         effective date.

26  

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

28  

29         Section 1.  Section 327.59, Florida Statutes, is

30  amended to read:

31         327.59  Marina evacuations.--

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

 2  maintain, or enforce policies pertaining to evacuation of

 3  vessels which require vessels to be removed from marinas

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

 5  order to ensure that protecting the lives and safety of vessel

 6  owners is placed before interests of protecting property.

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

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

 9  authorized representative to remove a vessel voluntarily from

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

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

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

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

14  issued, a marina owner or operator, or an employee or agent of

15  such owner or operator, may take actions to further secure any

16  vessel within the marina to minimize damage to a vessel, the

17  marina property, and the environment. Such a marina owner,

18  operator, employee, or agent may charge reasonable fees for

19  further securing of a vessel, may not be held liable for any

20  damage incurred to a vessel from such storms or hurricanes,

21  and shall be held harmless as a result of such actions.

22         (3)  Notwithstanding any other provision of this

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

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

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

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

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

28  its slip or take whatever actions are deemed necessary in

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

30  employee, or agent may charge the vessel owner a reasonable

31  fee for any such services rendered. In order to add such a

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 1  provision to a contract, the marina owner must include in any

 2  such contract, in a font of at least 10-point type, a notice

 3  to the vessel owner which is in substantially the following

 4  form:

 5  

 6                       NOTICE TO BOAT OWNER

 7  

 8         The undersigned hereby informs you that in the

 9         event you fail to remove your vessel from the

10         marina promptly after the issuance of a

11         hurricane watch or warning for__________,

12         Florida, under Florida law the undersigned or

13         his or her employees or agents are authorized

14         to remove your vessel from its slip or take any

15         and all other actions deemed appropriate by the

16         undersigned or his or her employees or agents

17         in order to secure your vessel and protect

18         marina property. You are further notified that

19         you may be charged a reasonable fee for any

20         such action.

21  

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

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

24         328.17  Nonjudicial sale of vessels.--

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

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

27  fees, dockage fees, repairs, improvements, or other

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

29  preservation of the vessel or expenses reasonably incurred in

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

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

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    Florida Senate - 2006                                  SB 2128
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 1  marina, or as of the date the vessel first occupies rental

 2  space at the marina facility.

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

 4  junked, or substantially dismantled condition which has been

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

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

 7  expenses reasonably incurred by the marina in the removal and

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

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

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

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

12  expenses reasonably incurred by the marina in removing and

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

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

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

16  to persons who hold perfected security interests against the

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

18  named as the debtor.

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

20  follows:

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

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

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

24  conspicuously posted at the marina and on the vessel.

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

26  owner under subparagraph 1., the marina shall identify and

27  provide written notice to each person or entity that:

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

29  the records of the Department of Highway Safety and Motor

30  Vehicles with respect to state-titled vessels;

31  

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

 2  claim of lien with the United States Coast Guard Vessel

 3  Documentation Center;

 4         c.  Holds a security interest against the vessel under

 5  the Uniform Commercial Code; or

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

 7  judgment lien certificate under ss. 55.201-55.209.

 8         3.  When a vessel displays a foreign country

 9  identification or displays registration numbers from a state

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

11  lien search of the vessel registration records in the

12  jurisdiction of registry to determine if there is a lienholder

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

14  discover a foreign national or non-Florida United States

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

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

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

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

19  under subsection (7) or subsection (11).

20         4.  The requirements of subparagraph 2. are satisfied

21  if the marina:

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

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

24  and Motor Vehicles or other agency where the vessel is

25  registered;

26         b.  Obtains an abstract from the United States Coast

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

28  s. 301.01;

29         c.  Performs a search of liens for the vessel and

30  trailer, if applicable, as provided under the Uniform

31  Commercial Code;

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 1         d.  Performs a search of current judgment lien

 2  certificates for the vessel and trailer, if applicable, as

 3  provided under state law; and

 4         e.  Conducts a reasonable lien search, as specified in

 5  subparagraph 3., with regard to vessels registered in a

 6  foreign country or in a state other than this state.

 7         5.  The written notice to the vessel owner and

 8  lienholders required by this paragraph must be made at least

 9  60 days before any sale of the vessel under this section.

10  recorded lienholder of such vessel registered with this state

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

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

13  sale.

14         (b)  The notice shall include:

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

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

17  upon which the sum became due.

18         2.  A description of the vessel.

19         3.  A demand for payment.

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

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

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

23  otherwise disposed of at a specified time and place.

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

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

26  notice.

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

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

29  after the vessel owner and lienholder are is given written

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

31  machinery, rigging, and accessories as provided for in

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

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

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

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

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

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

 7  reasonable expenses and late-payment interest incurred under

 8  this section and thereby redeem and take possession of the

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

10  return the property to the owner or lienholder making the

11  payment and thereafter shall have no liability to any person

12  with respect to such vessel.

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

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

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

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

17  Commercial Code, despite noncompliance by the marina with the

18  requirements of this section.

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

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

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

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

23  Uniform Commercial Code. The lien rights of secured

24  lienholders also are automatically attach transferred to the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10  of sale, the proceeds shall be deemed abandoned, and the owner

11  or the secured lienholder shall have no further obligation

12  with regard to the payment of the proceeds.

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

14  376.11, Florida Statutes, is amended to read:

15         376.11  Florida Coastal Protection Trust Fund.--

16         (4)  Moneys in the Florida Coastal Protection Trust

17  Fund shall be disbursed for the following purposes and no

18  others:

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

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

21  removal of derelict vessels from the public waters of the

22  state.

23         Section 4.  Section 376.15, Florida Statutes, is

24  amended to read:

25         376.15  Derelict vessels; removal from public waters.--

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), in a wrecked, junked, or substantially dismantled

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

30  in this state without the consent of the agency having

31  jurisdiction thereof or docked or grounded at any private

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 1  property without the consent of the owner of the private

 2  property.

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

 4  and its officers and all law enforcement officers as specified

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

 6  state authorized and empowered to remove any derelict vessel

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

 8  incurred by the commission or other law enforcement agency in

 9  the removal of any abandoned or derelict vessel shall be

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

11  Legal Affairs shall represent the commission in such actions.

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

13  grants to coastal local governments for the removal of

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

15  program shall be funded from the Florida Coastal Protection

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

17  funds available for grants may only be authorized by

18  appropriations acts of the Legislature.

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

20  submitting a grant application and criteria for allocating

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

22  limited to, the following:

23         1.  The number of derelict vessels within the

24  jurisdiction of the applicant.

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

26  or safety, the environment, navigation, or the aesthetic

27  condition of the general vicinity.

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

29  maintain waters free of abandoned and derelict vessels and to

30  seek legal action against those who abandon vessels in the

31  waters of the state.

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

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

 3  contravention of any applicable federal act.

 4         (e)  The Department of Legal Affairs shall represent

 5  the Fish and Wildlife Conservation Commission in such actions.

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

 7  403.813, Florida Statutes, is amended to read:

 8         403.813  Permits issued at district centers;

 9  exceptions.--

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

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

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

13  associated with the following types of projects; however,

14  except as otherwise provided in this subsection, nothing in

15  this subsection relieves an applicant from any requirement to

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

17  Trustees of the Internal Improvement Trust Fund or any water

18  management district in its governmental or proprietary

19  capacity or from complying with applicable local pollution

20  control programs authorized under this chapter or other

21  requirements of county and municipal governments:

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

23  maintenance of floating vessel platforms or floating boat

24  lifts, provided that such structures:

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

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

27  the water when not in use;

28         2.  Are wholly contained within a boat slip previously

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

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

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

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

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

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

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

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

 6  square feet outside of Outstanding Florida Waters, 500 square

 7  feet within an Outstanding Florida Water that is not an

 8  aquatic preserve, or 200 square feet within an aquatic

 9  preserve;

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

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

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

13  navigational hazard, or unreasonably infringe upon the

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

15  253.141;

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

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

18  plant and animal species, and other biological communities,

19  including locating such structures in areas where no

20  seagrasses are least dense exist if such areas are present

21  adjacent to the dock or bulkhead; and

22         5.  Are not constructed in areas specifically

23  prohibited for boat mooring under conditions of a permit

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

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

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

27  government.

28  

29  Structures that qualify for this exemption are relieved from

30  any requirement to obtain permission to use or occupy lands

31  owned by the Board of Trustees of the Internal Improvement

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 1  Trust Fund and shall not be subject to any permitting

 2  requirement, registration requirement, or other more stringent

 3  regulation by any local government. The exemption provided in

 4  this paragraph is shall be in addition to the exemption

 5  provided in paragraph (b). By January 1, 2007 2003, the

 6  department shall adopt a general permit by rule for the

 7  construction, installation, operation, or maintenance of those

 8  floating vessel platforms or floating boat lifts that do not

 9  qualify for the exemption provided in this paragraph but do

10  not cause significant adverse impacts to occur individually or

11  cumulatively. The issuance of such general permit shall also

12  constitutes constitute permission to use or occupy lands owned

13  by the Board of Trustees of the Internal Improvement Trust

14  Fund. Structures that qualify for Upon the adoption of the

15  rule creating such general permit are not subject to any

16  permitting requirement, registration requirement, or other

17  more stringent regulation by any, no local government shall

18  impose a more stringent regulation on floating vessel

19  platforms or floating boat lifts covered by such general

20  permit.

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

22  Statutes, is amended to read:

23         705.101  Definitions.--As used in this chapter:

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

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

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

27  partially dismantled condition or has no apparent intrinsic

28  value to the rightful owner. The term includes vessels

29  determined to be derelict by the Fish and Wildlife

30  Conservation Commission or a county or municipality in

31  

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 1  accordance with s. 376.15 or the provisions of s. 823.11 are

 2  included within this definition.

 3         Section 7.  Section 823.11, Florida Statutes, is

 4  amended to read:

 5         823.11  Abandoned and derelict vessels; removal;

 6  penalty.--

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

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

 9  327.02(37) by maritime law in a wrecked, junked, or

10  substantially dismantled condition or abandoned upon or in any

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

12  of the agency having jurisdiction thereof, or docked or

13  grounded at any private property without the consent of the

14  owner of the private such property.

15         (2)  The Fish and Wildlife Conservation Commission and

16  its officers and all law enforcement officers as specified in

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

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

19  abandoned or derelict vessel from public waters in any

20  instance when the same obstructs or threatens to obstruct

21  navigation or in any way constitutes a danger to the

22  environment. Removal of vessels pursuant to this section may

23  be funded by grants provided under s. 376.15. All costs

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

25  derelict vessel as set out above shall be recoverable against

26  the owner thereof. The Department of Legal Affairs shall

27  represent the commission in such actions. Pursuant to an

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

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

30  municipality is competent to undertake said responsibilities,

31  the commission may delegate to the county or municipality its

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

 2  derelict vessel from public waters within the county or

 3  municipality.

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

 5  act commits is guilty of a misdemeanor of the first degree and

 6  shall be punished as provided by law.

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

 8  law.

 9  

10            *****************************************

11                          SENATE SUMMARY

12    Authorizes marina owners, operators, employees, or agents
      to secure vessels during severe weather and to charge
13    fees and be held harmless for such service. Specifies
      contract provisions and notice requirements relating to
14    removing or securing vessels. Provides for possessory
      liens for marinas on certain abandoned vessels, including
15    attachment of the lien and recovery of certain costs.
      Provides for satisfaction of such a possessory lien by
16    notification after a good-faith lien search. Authorizes
      the marina to sell certain vessels if the fees, costs,
17    and interest are not paid after notice to the vessel
      owner. Authorizes satisfaction of the lien by the owner
18    or lienholder. Revises provisions relating to the Florida
      Coastal Protection Trust Fund to conform. Revises
19    provisions relating to the removal of abandoned and
      derelict vessels. Authorizes cost recovery. Requires the
20    Department of Legal Affairs to represent the Fish and
      Wildlife Conservation Commission in certain actions.
21    Expands eligibility for grant funds to remove derelict
      vessels. Provides exemptions from permitting and requires
22    a general permit by the Department of Environmental
      Protection for certain floating vessel platforms and
23    revises provisions that prohibit more stringent
      requirements by a local government. Deletes a provision
24    authorizing the commission to delegate certain authority
      to local governments under certain circumstances. (See
25    bill for details.)

26  

27  

28  

29  

30  

31  

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