1 LiveBloggin' the ICW

Wednesday, July 13, 2016

"Though this be madness, yet there is method in't."

Osric: A hit, a very palpable hit.

For those who remember their Shakespeare, this quote comes from the fencing scene in Hamlet where Hamlet is killed by the poison on the tip of Laerte’s foil.
Hamlet scores a hit, which is denied by Laerte, leading to Hamlet’s requesting a judgement on it.
The scene has certain parallels with what just happened in Miami Beach. 
You’ll recall that Miami Beach began enforcing their one week anchoring ordinance this past spring after several years of no action (since it was illegal!) and you’ll recall that I and others stated that it was illegal for them to do so.
Cruiser and local veterinarian Dr. Michael Tenzer decided to stand up to the injustice and was given two tickets for illegally being anchored on two different occasions by the Miami Beach police. One of these was given on the day that we held a demonstration in Miami Beach at the anchorage to protest the harassment of boaters legally at anchor.
Mike consulted with a number of people, including Boat US and myself, and then hired a lawyer to contest this ticket.
To make a long story much shorter, the City of Miami Beach knew damn well that they were in the wrong and, when someone confronted them with it, they bailed. They settled with Dr. Mike, agreeing to issue no more tickets to anyone at anchor in Miami Beach's South Beach anchorage, and to pay half of his $10,000 legal fee. 
I happen to have some issues with that aspect of the settlement - since the City of Miami Beach admitted it was wrong, it should have paid for the entire cost of Mike's defence. That is now water under the bridge. What's done is done and I'll take half a win over no win at all. In any event, I'll be discussing this settlement further in another post very soon after some further research and discussion with Dr. Mike. Watch for it.
For those following the battle closely, this is now the fourth time that a legal challenge against a local anchoring ordinance has been defeated in the courts or through legal action or the threat thereof - out of four incidents. The others were in Naples, Sarasota and Stuart. A fifth fight involved duking out the legal issues in the media and we won that one also.
In Naples, local boaters forced the police to give one of them a ticket for violating a local ordinance that stated boaters could not anchor within a certain distance of, I believe, a seawall (news story). The judge, in deciding, hammered Naples for its actions (news story and also this news story).
In Stuart, Vince Sibilla took on the locals three times, losing twice until he hired a maritime attorney, Barb Cook Esq. She forced the city to back down with the threat of a civil rights lawsuit - (see story here), and the City also partially reimbursed Sibilla for his attorney's fees, plus agreed to stop enforcement of the illegal local ordinance.
In Sarasota the City Attorney figured it out before the illegal ticket got to court (online story here) and actually recommended that Sarasota consider repealing the illegal ordinance.
Finally, I took on Melbourne and its Mayor in 2007 over an illegal three day anchoring ordinance. Following a story I wrote published in Southwinds Magazine (story here) on page 31, Melbourne stopped enforcing its illegal anchoring ordinance.
What's my point? Here's where I'm going off the reservation because almost all of the people leading the anchoring fight don't agree with me on this. 
The only wins we have had in the anchoring fight - five to date as noted - have not been in the Legislature. They've been in the courts, with reference to the law. Four of them involved lawyers schooling the cities as to the rights of boaters. 
Yet the organizations involved in fighting on your behalf - the SSCA, Boat US, MTOA and others - want to sit down with legislators and 'craft' laws that work for us. And just what have the results of this approach been? 
First of all, we got the 2009 Pilot Program that saw five areas of Florida get specialized rules along with mooring fields. We were assured at that time that there would be no local legislation enacted during the life of the Pilot Program, ostensibly 2014, now 2017. 
Despite that, on July 1, 2016, a new state law saw five areas of Florida deemed off-limits to overnight anchoring. Those areas included the family home of one of the bill's sponsors: Fort Lauderdale's Middle River. Two other areas in Miami Beach include the properties of the two most toxic dirtsiders I know of - Frederick Karlton of Sunset Lake, and Mark Gold of Venetian Causeway.
I assure you, more and more communities in Florida are going to attempt to get on this bandwagon. Already, Palm Beach and Boca Raton have tried, and I'm hearing rumours that Gulfport and some other cities are starting again to enforce illegal ordinances. For sure, Miami Beach is going to continue to fight against us until they can move us out, using whatever measures they can, such as the no dinghy tie up law they've enacted.
In fairness, perhaps the legislative route might have worked had we had a paid lobbyist as we did the year previous. However, the money wasn't there for this, although the City of Fort Lauderdale had a paid lobbyist for this action, and Miami Beach put significant local resources into the fight. We cruisers simply don't have access to that kind of money. 
In my opinion, I think we need to let the legislature do whatever it wants - and then take them to court using the Public Trust Doctrine, along with other maritime laws and precedents that support our cause.
That won't be cheap either, the courts never are, but we're spinning our wheels fighting in Tallahassee. It's the old joke about why you shouldn't fight in the mud with pigs (or legislators!)....because the pigs enjoy it! 
The reality is that legislators answer to their constituents, not transient boaters, and especially the wealthy ones who are financing this fight against us. Winning in the legislature is difficult, and will take a tremendous amount of time, effort and money. And, a win can be turned around on us in the next legislative session. The fight simply doesn't end if we choose to fight there. We've been fighting this fight for over 30 years and we're still fighting it. It's time to change tactics.
A fight in the courts on the other hand, should we win - and I admit there are risks to going to court, like losing - will be permanent. The court's decree trumps Tallahassee. It ends the fight.
Yes, we saw several years of peace after the enactment of 327.60, the law that stopped Florida municipalities from creating local regulations, but pressure from those same municipalities has put us into the situation we're now in. Laws can always be changed, and politicians, especially Florida politicians, can always be bought to change them. That's just how it is.
But as we can see - we're four for four in the courts, while we're losing badly in Tallahassee. Maybe we need to rethink our strategy before it's too late for us.
One last comment - I believe that the upcoming legislative session in Florida will be our biggest battle yet. I suggest you get ready for it - prepare to spend time, and to open your wallets, to defend our rights.
Otherwise, prepare to lose them.