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