Florida Senate - 2009                                    SB 2536
       
       
       
       By Senator Constantine
       
       
       
       
       22-01390A-09                                          20092536__
    1                        A bill to be entitled                      
    2         An act relating to boating; amending s. 253.04, F.S.;
    3         providing that the duty of the Board of Trustees of
    4         the Internal Improvement Trust Fund to conserve and
    5         improve state-owned lands includes the preservation
    6         and regeneration of seagrass; providing that operating
    7         a vessel outside a lawfully marked channel in a
    8         careless manner causing seagrass scarring within
    9         certain aquatic preserves is a violation of the vessel
   10         laws and a noncriminal infraction; defining the terms
   11         “seagrass scarring” and “seagrass”; providing for a
   12         uniform boating citation; providing criminal penalties
   13         for refusal to post bond or accept and sign the
   14         citation; amending s. 327.35, F.S.; revising penalties
   15         for boating under the influence of alcohol; revising
   16         the blood-alcohol level or breath-alcohol level at
   17         which certain penalties apply; amending s. 327.36,
   18         F.S.; revising a prohibition against accepting a plea
   19         to a lesser included offense from a person who is
   20         charged with certain offenses involving the operation
   21         of a vessel; revising the blood-alcohol level or
   22         breath-alcohol level at which the prohibition applies;
   23         amending s. 327.50, F.S.; revising requirements for
   24         persons on board a vessel to wear a personal
   25         floatation device; revising the age at which such
   26         device is required; providing exceptions; creating s.
   27         327.66, F.S.; prohibiting possessing or operating a
   28         vessel equipped with certain fuel containers or
   29         related equipment; prohibiting transporting fuel in a
   30         vessel except in compliance with certain federal
   31         regulations; providing penalties; declaring fuel
   32         transported in violation of such prohibitions to be a
   33         public nuisance and directing the enforcing agency to
   34         abate the nuisance; providing for disposal of the
   35         containers and fuel; declaring conveyances, vessels,
   36         vehicles, and equipment used in such violation to be
   37         contraband; providing for seizure of the contraband;
   38         providing for costs to remove fuel, containers,
   39         vessels, and equipment to be paid by the owner;
   40         providing that a person who fails to pay such cost
   41         shall not be issued a certificate of registration for
   42         a vessel or motor vehicle; amending s. 327.73, F.S.;
   43         providing for disposition of a citation for carelessly
   44         causing seagrass scarring; providing penalties;
   45         amending s. 379.338, F.S.; providing for confiscation
   46         and disposition of illegally taken game, wildlife,
   47         freshwater fish, and saltwater fish; providing for
   48         proceeds from sales to be deposited into the Marine
   49         Resources Conservation Trust Fund; providing for an
   50         agency that assists in the enforcement action to
   51         receive a portion or all of any forfeited property;
   52         creating s. 379.3381, F.S.; providing for photographs
   53         of game, wildlife, freshwater fish, or saltwater fish
   54         to be used as evidence in a prosecution in lieu of the
   55         game, wildlife, freshwater fish, or saltwater fish;
   56         providing an effective date.
   57  
   58  Be It Enacted by the Legislature of the State of Florida:
   59  
   60         Section 1. Subsection (4) of section 253.04, Florida
   61  Statutes, is amended to read:
   62         253.04 Duty of board to protect, etc., state lands; state
   63  may join in any action brought.—
   64         (4) Whenever any person or the agent of any person
   65  knowingly refuses to comply with or willfully violates any of
   66  the provisions of this chapter so that such person causes damage
   67  to the lands of the state or products thereof, including removal
   68  of those products, such violator is liable for such damage.
   69  Whenever two or more persons or their agents cause damage, and
   70  if such damage is indivisible, each violator is jointly and
   71  severally liable for such damage; however, if such damage is
   72  divisible and may be attributed to a particular violator or
   73  violators, each violator is liable only for that damage and
   74  subject to the fine attributable to his or her violation.
   75         (a) The duty to conserve and improve state-owned lands and
   76  the products thereof shall include the preservation and
   77  regeneration of seagrass, which is deemed essential to the
   78  oceans, gulfs, estuaries, and shorelines of the state. A person
   79  operating a vessel outside a lawfully marked channel in a
   80  careless manner that causes seagrass scarring within an aquatic
   81  preserve established in ss. 258.39-258.399, with the exception
   82  of the Lake Jackson, Oklawaha River, Wekiva River, and Rainbow
   83  Springs aquatic preserves, commits a noncriminal infraction,
   84  punishable as provided in s. 327.73. Each violation is a
   85  separate offense. As used in this subsection, the term:
   86         1. “Seagrass scarring” means destruction of seagrass roots,
   87  shoots, or stems that results in tracks on the substrate, caused
   88  by the operation of a motorized vessel in waters supporting
   89  seagrasses, commonly referred to as prop scars or propeller
   90  scars.
   91         2. “Seagrass” means Cuban shoal grass (Halodule wrightii),
   92  turtle grass (Thalassia testudinum), manatee grass (Syringodium
   93  filiforme), star grass (Halophila engelmannii), paddle grass
   94  (Halophila decipiens), Johnsons seagrass (Halophila johnsonii),
   95  or widgeon grass (Ruppia maritima).
   96         (b) Any violation under paragraph (a) is a violation of the
   97  vessel laws of this state and shall be charged on a uniform
   98  boating citation as provided in s. 327.74. Any person who
   99  refuses to post a bond or accept and sign a uniform boating
  100  citation commits a misdemeanor of the second degree, as provided
  101  in s. 327.73(3), punishable as provided in s. 775.082 or s.
  102  775.083.
  103         Section 2. Subsection (4) of section 327.35, Florida
  104  Statutes, is amended to read:
  105         327.35 Boating under the influence; penalties; “designated
  106  drivers”.—
  107         (1) A person is guilty of the offense of boating under the
  108  influence and is subject to punishment as provided in subsection
  109  (2) if the person is operating a vessel within this state and:
  110         (a) The person is under the influence of alcoholic
  111  beverages, any chemical substance set forth in s. 877.111, or
  112  any substance controlled under chapter 893, when affected to the
  113  extent that the person’s normal faculties are impaired;
  114         (b) The person has a blood-alcohol level of 0.08 or more
  115  grams of alcohol per 100 milliliters of blood; or
  116         (c) The person has a breath-alcohol level of 0.08 or more
  117  grams of alcohol per 210 liters of breath.
  118         (4) Any person who is convicted of a violation of
  119  subsection (1) and who has a blood-alcohol level or breath
  120  alcohol level of 0.15 0.20 or higher, or any person who is
  121  convicted of a violation of subsection (1) and who at the time
  122  of the offense was accompanied in the vessel by a person under
  123  the age of 18 years, shall be punished:
  124         (a) By a fine of:
  125         1. Not less than $1,000 or more than $2,000 for a first
  126  conviction.
  127         2. Not less than $2,000 or more than $4,000 for a second
  128  conviction.
  129         3. Not less than $4,000 for a third or subsequent
  130  conviction.
  131         (b) By imprisonment for:
  132         1. Not more than 9 months for a first conviction.
  133         2. Not more than 12 months for a second conviction.
  134  
  135  For the purposes of this subsection, only the instant offense is
  136  required to be a violation of subsection (1) by a person who has
  137  a blood-alcohol level or breath-alcohol level of 0.15 0.20 or
  138  higher.
  139         Section 3. Paragraph (a) of subsection (2) of section
  140  327.36, Florida Statutes, is amended to read:
  141         327.36 Mandatory adjudication; prohibition against
  142  accepting plea to lesser included offense.—
  143         (2)(a) No trial judge may accept a plea of guilty to a
  144  lesser offense from a person who is charged with a violation of
  145  s. 327.35, manslaughter resulting from the operation of a
  146  vessel, or vessel homicide and who has been given a breath or
  147  blood test to determine blood or breath alcohol content, the
  148  results of which show a blood-alcohol level or breath-alcohol
  149  level of 0.15 0.16 or more.
  150         Section 4. Paragraph (b) of subsection (1) of section
  151  327.50, Florida Statutes, is amended to read:
  152         327.50 Vessel safety regulations; equipment and lighting
  153  requirements.—
  154         (1)
  155         (b) A No person shall not operate a vessel less than 26
  156  feet in length on the waters of this state unless every person
  157  who has not attained 10 under 6 years of age on board the vessel
  158  is wearing an appropriate personal flotation device approved by
  159  the a type I, type II, or type III Coast Guard, is below decks,
  160  or is in an enclosed cabin approved personal flotation device
  161  while such vessel is underway. For the purpose of this section,
  162  “underway” means shall mean at all times except when a vessel is
  163  anchored, moored, made fast to the shore, or aground.
  164         Section 5. Section 327.66, Florida Statutes, is created to
  165  read:
  166         327.66 Carriage of fuel on vessels.—
  167         (1)(a) A person shall not:
  168         1. Possess or operate any vessel that has been equipped
  169  with fuel tanks, bladders, drums, or other containers designed
  170  or intended to hold fuel, or install or maintain such containers
  171  in a vessel, if such containers do not conform to federal
  172  regulations or have not been approved by the United States Coast
  173  Guard by inspection or special permit.
  174         2. Possess or operate any vessel that has been equipped
  175  with pipes, hoses, or auxiliary pumps that, when present in the
  176  vessel, could be used to introduce fuel into the primary fuel
  177  system of the vessel from such tanks, bladders, drums, or other
  178  containers or to transfer fuel from one such container to
  179  another.
  180         3. Transport any fuel in an approved portable container
  181  when the container is in a compartment that is not ventilated in
  182  strict compliance with United States Coast Guard regulations
  183  pertaining to ventilation of compartments containing fuel tanks.
  184         (b) A person who violates paragraph (a) commits a felony of
  185  the third degree, punishable as provided in s. 775.082, s.
  186  775.083, or s. 775.084.
  187         (2)(a) Fuel possessed or transported in violation of this
  188  section and all containers holding such fuel are declared to be
  189  a public nuisance. A law enforcement agency discovering fuel
  190  possessed or transported in violation of paragraph (1)(a) shall
  191  abate the nuisance by removing the fuel and containers from the
  192  vessel and from the waters of this state. A law enforcement
  193  agency that removes fuel or containers pursuant to this
  194  subsection may elect to:
  195         1. Retain the property for the agency’s own use;
  196         2. Transfer the property to another unit of state or local
  197  government;
  198         3. Donate the property to a charitable organization; or
  199         4. Sell the property at public sale pursuant to s. 705.103.
  200         (b) A law enforcement agency that seizes fuel or containers
  201  pursuant to this subsection shall remove and reclaim, recycle,
  202  or otherwise dispose of the fuel as soon as practicable in a
  203  safe and proper manner.
  204         (3) All conveyances, vessels, vehicles, and other equipment
  205  described in paragraph (1)(a) or used in the commission of a
  206  violation of paragraph (1)(a), other than fuel or containers
  207  removed as provided in subsection (2), are declared to be
  208  contraband.
  209         (a) Upon conviction of a person arrested for a violation of
  210  paragraph (1)(a), the judge shall issue an order adjudging and
  211  ordering that all conveyances, vessels, vehicles, and other
  212  equipment used in the violation shall be forfeited to the
  213  arresting agency. The requirement for a conviction before
  214  forfeiture of property establishes to the exclusion of any
  215  reasonable doubt that the property was used in connection with
  216  the violation resulting in the conviction, and the procedures of
  217  chapter 932 do not apply to any forfeiture of property under
  218  this subsection following a conviction.
  219         (b) In the absence of an arrest or conviction, any such
  220  conveyance, vessel, vehicle, or other equipment used in
  221  violation of paragraph (1)(a) shall be subject to seizure and
  222  forfeiture as provided by the Florida Contraband Forfeiture Act.
  223         (4) All costs incurred by the law enforcement agency in the
  224  removal of any fuel, fuel container, other equipment, or vessel
  225  as provided in this section shall be recoverable against the
  226  owner thereof. Any person who neglects or refuses to pay such
  227  amount shall not be issued a certificate of registration for
  228  such vessel or for any other vessel or motor vehicle until the
  229  costs have been paid.
  230         Section 6. Section 327.73, Florida Statutes, is amended to
  231  read:
  232         327.73 Noncriminal infractions.—
  233         (1) Violations of the following provisions of the vessel
  234  laws of this state are noncriminal infractions:
  235         (a) Section 328.46, relating to operation of unregistered
  236  and unnumbered vessels.
  237         (b) Section 328.48(4), relating to display of number and
  238  possession of registration certificate.
  239         (c) Section 328.48(5), relating to display of decal.
  240         (d) Section 328.52(2), relating to display of number.
  241         (e) Section 328.54, relating to spacing of digits and
  242  letters of identification number.
  243         (f) Section 328.60, relating to military personnel and
  244  registration of vessels.
  245         (g) Section 328.72(13), relating to operation with an
  246  expired registration.
  247         (h) Section 327.33(2), relating to careless operation.
  248         (i) Section 327.37, relating to water skiing, aquaplaning,
  249  parasailing, and similar activities.
  250         (j) Section 327.44, relating to interference with
  251  navigation.
  252         (k) Violations relating to restricted areas and speed
  253  limits:
  254         1. Established by the commission pursuant to s. 327.46.
  255         2. Established by local governmental authorities pursuant
  256  to s. 327.22 or s. 327.60.
  257         3. Speed limits established pursuant to s. 379.2431(2).
  258         (l) Section 327.48, relating to regattas and races.
  259         (m) Section 327.50(1) and (2), relating to required safety
  260  equipment, lights, and shapes.
  261         (n) Section 327.65, relating to muffling devices.
  262         (o) Section 327.33(3)(b), relating to navigation rules.
  263         (p) Section 327.39(1), (2), (3), and (5), relating to
  264  personal watercraft.
  265         (q) Section 327.53(1), (2), and (3), relating to marine
  266  sanitation.
  267         (r) Section 327.53(4), (5), and (7), relating to marine
  268  sanitation, for which the civil penalty is $250.
  269         (s) Section 327.395, relating to boater safety education.
  270         (t) Section 327.52(3), relating to operation of overloaded
  271  or overpowered vessels.
  272         (u) Section 327.331, relating to divers-down flags, except
  273  for violations meeting the requirements of s. 327.33.
  274         (v) Section 327.391(1), relating to the requirement for an
  275  adequate muffler on an airboat.
  276         (w) Section 327.391(3), relating to the display of a flag
  277  on an airboat.
  278         (x) Section 253.04(4)(a), relating to carelessly causing
  279  seagrass scarring, for which the civil penalty upon conviction
  280  is:
  281         1. For a first offense, $50.
  282         2. For a second offense occurring within 12 months after a
  283  prior conviction, $250.
  284         3. For a third offense occurring within 36 months after a
  285  prior conviction, $500.
  286         4. For a fourth or subsequent offense, $1,000.
  287  
  288  Any person cited for a violation of any such provision shall be
  289  deemed to be charged with a noncriminal infraction, shall be
  290  cited for such an infraction, and shall be cited to appear
  291  before the county court. The civil penalty for any such
  292  infraction is $50, except as otherwise provided in this section.
  293  Any person who fails to appear or otherwise properly respond to
  294  a uniform boating citation shall, in addition to the charge
  295  relating to the violation of the boating laws of this state, be
  296  charged with the offense of failing to respond to such citation
  297  and, upon conviction, be guilty of a misdemeanor of the second
  298  degree, punishable as provided in s. 775.082 or s. 775.083. A
  299  written warning to this effect shall be provided at the time
  300  such uniform boating citation is issued.
  301         (2) Any person cited for an infraction under this section
  302  may:
  303         (a) Post a bond, which shall be equal in amount to the
  304  applicable civil penalty; or
  305         (b) Sign and accept a citation indicating a promise to
  306  appear.
  307  
  308  The officer may indicate on the citation the time and location
  309  of the scheduled hearing and shall indicate the applicable civil
  310  penalty.
  311         (3) Any person who willfully refuses to post a bond or
  312  accept and sign a summons is guilty of a misdemeanor of the
  313  second degree.
  314         (4) Any person charged with a noncriminal infraction under
  315  this section may:
  316         (a) Pay the civil penalty, either by mail or in person,
  317  within 30 days of the date of receiving the citation; or,
  318         (b) If he or she has posted bond, forfeit bond by not
  319  appearing at the designated time and location.
  320  
  321  If the person cited follows either of the above procedures, he
  322  or she shall be deemed to have admitted the noncriminal
  323  infraction and to have waived the right to a hearing on the
  324  issue of commission of the infraction. Such admission shall not
  325  be used as evidence in any other proceedings. If a person who is
  326  cited for a violation of s. 327.395 can show a boating safety
  327  identification card issued to that person and valid at the time
  328  of the citation, the clerk of the court may dismiss the case and
  329  may assess a dismissal fee of up to $10. If a person who is
  330  cited for a violation of s. 328.72(13) can show proof of having
  331  a registration for that vessel which was valid at the time of
  332  the citation, the clerk may dismiss the case and may assess the
  333  dismissal fee.
  334         (5) Any person electing to appear before the county court
  335  or who is required so to appear shall be deemed to have waived
  336  the limitations on the civil penalty specified in subsection
  337  (1). The court, after a hearing, shall make a determination as
  338  to whether an infraction has been committed. If the commission
  339  of an infraction has been proven, the court may impose a civil
  340  penalty not to exceed $500.
  341         (6) At a hearing under this chapter the commission of a
  342  charged infraction must be proved beyond a reasonable doubt.
  343         (7) If a person is found by the hearing official to have
  344  committed an infraction, he or she may appeal that finding to
  345  the circuit court.
  346         (8) All fees and civil penalties assessed and collected
  347  pursuant to this section shall be remitted by the clerk of the
  348  court to the Department of Revenue to be deposited into the
  349  Marine Resources Conservation Trust Fund for boating safety
  350  education purposes.
  351         (9)(a) Any person who fails to comply with the court’s
  352  requirements or who fails to pay the civil penalties specified
  353  in this section within the 30-day period provided for in s.
  354  327.72 must pay an additional court cost of up to $20, which
  355  shall be used by the clerks of the courts to defray the costs of
  356  tracking unpaid uniform boating citations.
  357         (b) Any person who fails to comply with the court’s
  358  requirements as to civil penalties specified in this section due
  359  to demonstrated financial hardship shall be authorized to
  360  satisfy such civil penalties by public works or community
  361  service. Each hour of such service shall be applied, at the rate
  362  of the minimum wage, toward payment of the person’s civil
  363  penalties; provided, however, that if the person has a trade or
  364  profession for which there is a community service need and
  365  application, the rate for each hour of such service shall be the
  366  average standard wage for such trade or profession. Any person
  367  who fails to comply with the court’s requirements as to such
  368  civil penalties who does not demonstrate financial hardship may
  369  also, at the discretion of the court, be authorized to satisfy
  370  such civil penalties by public works or community service in the
  371  same manner.
  372         (c) If the noncriminal infraction has caused or resulted in
  373  the death of another, the court may require the person who
  374  committed the infraction to perform 120 community service hours
  375  in addition to any other penalties.
  376         (10) Any person cited for any noncriminal infraction which
  377  results in an accident that causes the death of another, or
  378  which results in an accident that causes “serious bodily injury”
  379  of another as defined in s. 327.353(1), shall not have the
  380  provisions of subsection (4) available to him or her but must
  381  appear before the designated official at the time and location
  382  of the scheduled hearing.
  383         (11)(a) Court costs that are to be in addition to the
  384  stated civil penalty shall be imposed by the court in an amount
  385  not less than the following:
  386         1. For swimming or diving infractions, $4.
  387         2. For nonmoving boating infractions, $18.
  388         3. For boating infractions listed in s. 327.731(1), $35.
  389         (b) In addition to the court cost assessed under paragraph
  390  (a), the court shall impose a $3 court cost for each noncriminal
  391  infraction, to be distributed as provided in s. 938.01, and a $2
  392  court cost as provided in s. 938.15 when assessed by a
  393  municipality or county.
  394  
  395  Court costs imposed under this subsection may not exceed $45. A
  396  criminal justice selection center or both local criminal justice
  397  access and assessment centers may be funded from these court
  398  costs.
  399         Section 7. Section 379.338, Florida Statutes, is amended to
  400  read:
  401         379.338 Confiscation and disposition of illegally taken
  402  game, wildlife, freshwater fish, and saltwater fish.—
  403         (1) All game, wildlife, and freshwater fish, and saltwater
  404  fish seized under the authority of this chapter, any other
  405  chapter, or rules of the commission shall, upon conviction of
  406  the offender or sooner in accordance with a court order if the
  407  court so orders, be forfeited to the investigating law
  408  enforcement agency. The law enforcement agency may elect to
  409  retain the wildlife, freshwater fish, or saltwater fish for the
  410  agency’s official use; transfer it to another unit of state or
  411  local government for official use; donate it to a charitable
  412  organization; sell it at public sale pursuant to s. 705.103; or
  413  destroy the wildlife, freshwater fish, or saltwater fish if none
  414  of the other options is practicable or if the wildlife,
  415  freshwater fish, or saltwater fish is unwholesome or otherwise
  416  not of appreciable value. All live wildlife, freshwater fish,
  417  and saltwater fish the possession of which is unlawful may be
  418  properly documented as evidence as provided in s. 379.3381 and
  419  returned to the habitat unharmed, except that nonnative species
  420  may be released only as allowed by rule of the commission. Any
  421  unclaimed wildlife, freshwater fish, or saltwater fish shall be
  422  retained by the investigating law enforcement agency and
  423  disposed of in accordance with this subsection and given to some
  424  hospital or charitable institution and receipt therefor sent to
  425  the Fish and Wildlife Conservation Commission.
  426         (2) All furs or hides or fur-bearing animals seized under
  427  the authority of this chapter shall, upon conviction of the
  428  offender, be forfeited and sent to the commission, which shall
  429  sell the same and deposit the proceeds of such sale to the
  430  credit of the State Game Trust Fund. If any such hides or furs
  431  are seized and the offender is unknown, the court shall order
  432  such hides or furs sent to the Fish and Wildlife Conservation
  433  Commission, which shall sell such hides and furs.
  434         (3)and deposit The proceeds of any such sale under this
  435  section shall be remitted to the Department of Revenue to be
  436  deposited to the credit of the State Game Trust Fund or the
  437  Marine Resources Conservation Trust Fund.
  438         (4) Any state, county, or municipal law enforcement agency
  439  that enforces or assists the commission in enforcing this
  440  chapter, which enforcement results in a forfeiture of property
  441  as provided in this section, is entitled to receive all or a
  442  share of any property based upon its participation in the
  443  enforcement.
  444         Section 8. Section 379.3381, Florida Statutes, is created
  445  to read:
  446         379.3381 Photographic evidence of illegally taken wildlife,
  447  freshwater fish, and saltwater fish.—In any prosecution for a
  448  violation of this chapter, any other chapter, or rules of the
  449  commission, a photograph of illegally taken wildlife, freshwater
  450  fish, or saltwater fish may be deemed competent evidence of such
  451  property and may be admissible in the prosecution to the same
  452  extent as if such wildlife, freshwater fish, or saltwater fish
  453  were introduced as evidence. Such photograph shall bear a
  454  written description of the wildlife, freshwater fish, or
  455  saltwater fish alleged to have been illegally taken, the name of
  456  the violator, the location where the alleged illegal taking
  457  occurred, the name of the investigating law enforcement officer,
  458  the date the photograph was taken, and the name of the
  459  photographer. Such writing shall be made under oath by the
  460  investigating law enforcement officer, and the photograph shall
  461  be identified by the signature of the photographer. Upon the
  462  filing of such photograph and writing with the law enforcement
  463  authority or court holding such property as evidence, the
  464  wildlife, freshwater fish, or saltwater fish may be disposed of
  465  in accordance with s. 379.338.
  466         Section 9. This act shall take effect October 1, 2009.
  467