1 LiveBloggin' the ICW

Wednesday, April 21, 2021

Boating Organizations are Failing Us

Earlier this week, I sent a letter to the leaders of the boating organizations and businesses that are supposedly representing us in Florida with regards to the anchoring legislation. I have not heard back from them about the concerns I brought up. 

Those organizations include the Seven Seas Cruising Association, the Marine Trawler Owners Association, the American Great Loop Cruising Association, Boat US and Waterway Guide.
Why should this concern you? 

It's because I wrote to them about significant issues in the anchoring bills currently in front of Florida’s legislation, including two major issues I have not yet brought up in public until now.  (Portions of that letter are excerpted in this blog post.)
These boating groups that you support financially are failing to represent your interests by not fighting to stop HB 1515 and S 1946, which are the Anchoring Limitation Area bills. 

One of the leaders in this group has told me that they don't like these bills, but that they are the best we can get so they are going along with them. That's a winning strategy if I've ever heard one.

These bills as written will keep you from being able to anchor for more than 30 days out of six months in designated areas, areas determined by local governments. And you can 'bet your bippy' that those will be areas that are ones boaters have found to be both safe and convenient.

So why are these groups not fighting these bills? It’s because they think, wrongly imo, that these bills won’t affect cruisers. And as I said, it's because they don't believe that they can stop the legislature from enacting them. 

That attitude is exactly how we got FL § 327.4108 and lost the right to anchor in Sunset Lake, Miami Beach, and Middle River, Fort Lauderdale in 2016/17.
Fine, you say!
I never anchor more than a couple of weeks in any one place anyhow. 
Great! And what happens when that one month in six gets reduced to two weeks, or one week, or 72 hours? That's what will happen as local jurisdictions start using the new laws. They'll ask for more and more restrictions on boaters until all our rights to anchor are gone, until we return to the mess that we had prior to 2007.

Can't happen? 
Uh, yes, it can. Why do you think we had Florida § 327.60? It was to prevent the patchwork of different local laws that we had prior to 2007 where places like Melbourne and Fort Lauderdale had 72 hour anchoring limitations. 

We were promised by the legislature that local authorities would not be permitted to enact local ordinances - and now we're right back to that.
Regardless of anything else, that simply isn't right. But there's worse, much worse, in these bills. Be afraid.

There are serious problems with this legislation

HB1515 has some huge problems associated with it. For starters, the FWC who will be tasked with implementing and enforcing it are concerned. More than one senior staff at the FWC has told me quietly that they do not have the resources - fiscal or personnel - to take on the requirements of HB 1515. 

They were unable to complete the survey required of them in HB 1221 (2019) and now the legislature is considering adding even more to their workload? How will that work out?

The FWC does not want, and cannot handle, the extra responsibilities mandated by the bill. They will be in favor of any effort put forth by the boating associations put forth to kill it.

Secondly, and again this is from the FWC, there is no data available, no survey, for any county in Florida on the extent of the “navigable waters” of the state. That being the case, there is no valid or legal way they can permit 10% ALAs because they simply don’t have the data to determine just how big 10% actually is.

Yes, some county can say that their proposed area is clearly less than 10% and yes, they could clearly be correct about it, but without the data showing what the facts are, those claims cannot stand. Florida doesn’t even have a legal definition of “navigable waters”, although they are trying to create one in the legislation. But, this lack of data is too big a weakness to be papered over.

Anything that any county does to create an ALA will be subject to a legal challenge demanding that the county present proper studies justifying their request, including a legal definition of what constitutes “navigable waters” - a state issue. If the bill does pass, it will be years before any community can get an ALA, provided that there is an entity willing to sue. And I assure you of this, there will be one, the Cruisers Rights Network of North America. 

Gulfport found that out the hard way last spring. We won’t back down.

Local governments will not want to spend the money on dealing with these lawsuits, or with doing the requisite surveys to authorize their ALAs, and the FWC has neither the funds nor resources to deal with doing the surveys.

These weaknesses are exploitable - provided these organizations wish to exploit them to defeat this bill. And so far, they have not.

But there is still far worse here: a Constitutional Violation of your rights

HB1515 states the following: 

(b)1. For a vessel in an anchoring limitation area under subsection (2), upon an inquiry by a law enforcement officer or agency, a vessel owner or operator must be given an opportunity to provide proof that the vessel has not exceeded the limitations described in subsection (2). 

Such proof may include any of the following: 

a. Documentation showing that the vessel was in another location at least 1 mile away within a period of less than 30 days before the inquiry. 

b. Electronic evidence, including, but not limited to, navigational devices or tracking devices that show the vessel was in another location at least 1 mile away within a period of less than 30 days before the inquiry.

2. If a vessel owner or operator fails or refuses to provide proof that the vessel has not exceeded the limitations described in subsection (2), the law enforcement officer or agency may issue a citation for a violation of this section.

Two lawyers and an out of state legislator have said to me that in their opinions this section violates the federal Constitution’s concept of "presumption of innocence”. For our purposes here, the definition of “presumption of innocence” from an online legal dictionary is useful, and is essentially the same regardless of which source you choose:

“Presumption of innocence: A principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence.”

Is there any reason that this has not been brought up to the various committees examining this bill? Isn’t this something vital that our associations would want to address?  

What the law currently requires of a person charged under HB 1515 is that they go to court to prove their innocence, if they could not do so when offered the opportunity by the LEO at the time of writing the citation. And that, to any thinking human being, is the exact opposite of “presumed innocent”. 

Now, would you like to know why this bill is written in this manner? It’s because it is absolutely impossible to get a conviction without having monitored the boat in question for the entire thirty days. 

All the individual charged has to ask the officer in court is the following: 

“Sir/Ma’am, did you observe this boat continuously for the past thirty days?”
You did not? Then please, Sir/Ma’am, provide this court with proof that the boat in question did not leave the ALA for thirty days.”

END OF STORY right there. It is the prosecution’s legal obligation to provide proof of guilt. It is NOT the accused’s obligation to prove he left the ALA before the 30 days was up. There can be no conviction and NO way of forcing anyone to move their boat without significant legal issues arising to the prejudice of the acting authority.

Let us consider this point: shouldn't this very important issue be brought up with the boating group members? This one thing alone will kill HB 1515 at this late date. It's central to the entire bill. 

I won’t even get into how the way this bill is to be enforced is basically an intimidation tactic, one that will force boaters to leave rather than fight for what is theirs: the right to remain legally anchored.

Oh, What the Heck, Let’s Go There.

So, you tell me, if the boater is over thirty days in one place… they need to move on. They won't be harassed if they’ve not been anchored there that long.

Sorry, here’s what will really happen, because I’ve seen it happen way too often, including to myself back before 2007 when I was in Fort Lauderdale’s 72 hour anchoring bylaw area. 

The law rolls up in his/her police boat and demands you prove you haven't been there for 30 days. For whatever reason, you cannot prove this and you are forced to move, or you get a citation to appear in court. Most boaters of course will simply move on, they don't want the fight. That's what I did in Fort Lauderdale.

Can't happen, won't happen, you say? 

Sorry, but it will. Here’s what I’ve personally observed in the past. 

In 2007, an assistant city attorney in Melbourne blatantly told me that she would charge boaters under their local 72 hour ordinance, regardless of the terms of Florida Statute 327.60, and let the accused appear in court to prove her wrong. I stopped that from happening and forced Melbourne to stop enforcing their local ordinance.

In 2016, Miami Beach attempted to enforce their illegal anchoring bylaw. Working with a local boater, Dr. Tenzer, a group of us put a stop to that. Tenzer got a financial settlement from the City for his legal costs.

In the spring of 2020, the Chief of Police in Gulfport FL lied outright about the issue of their illegal enforcement of 327.60. As you all know, the CRNNA stopped the enforcement of their illegal ordinance.

Just a few weeks ago, the City Attorney in St. Petersburg tried to BS me about whether their police were attempting to enforce their local, illegal anchoring ordinance, which they were doing. We ended that practice there also.

If you believe this can't happen, you're mistaken. As I’ve just demonstrated, it can, it has and it will again. 

It’s happening now in fact. Some of you have told me of several jurisdictions that are using illegal ordinances to intimidate boaters and move them on. The CRNNA can’t deal with these communities yet as we don’t have the evidence we need to stop them. And for the record, we do this work quietly, respectfully and seeking to gain the co-operation of the local authorities in eliminating enforcement of these illegal ordinances. We’ve been successful in every case, although St. Petersburg did require a second warning before they got the message.

Bottom line here as we know is that local authority listens to their local taxpayers, not the individual boater, and really, what would you do as the boater in this situation? Take the ticket and go to court, or move on? We all know the answer to that one, don’t we?

HB 1515 will affect every cruiser traveling in Florida who chooses to anchor. This kind of behaviour from local law enforcement was the case pre-2007, it’s been the case all along, and it will be the case going forward, but it will be far worse without the protection of 327.60. 

So What Can I Do?

First of all, if you're a member of one of the above organizations, contact your executive and ask them why they aren't acting on these issues. 

Here's what you'll get back from them.

They'll tell you I don't know what I'm talking about, or I'm wrong, or I'm an idiot and you should just ignore me. 

Please tell them, from me, that if they believe any of that then they should explain why, to me, instead of ignoring what I've said, so I can give you the correct information. Tell them also that they were wrong in 2016/17 and they are making the same mistake now - trusting the legislators to not go back on their word.  

Secondly, demand that they address these issues before we lose our rights to still more anchorages in Florida. They were, all of them, wrong in 2016 and 2017 and they are doing the same thing now. These groups are your groups if you pay dues and they are supposed to do what you want.

Third, and this applies to everyone, you need to right now contact the members of the Florida legislature about these issues and kick up a fuss. Send emails and even more importantly, phone them. Make it clear to their staff, since you likely won't reach the member, that you are concerned about the significant problems these bills have.

Next, contact your boating and local media, particularly if you live in Florida. Explain to them why you are concerned. 

Finally, share this blog post with everyone you can. More than just boaters need to be concerned when the error in the bill is a violation of your Constitutional rights.

You can follow this issue on the CRNNA's Facebook page for up to date information.

We have only a few days to stop this from happening.

If you don't take action immediately, you can expect these bills to pass. I promise you that if we don't act now, within three to five years, there will be huge areas in Florida where you will not be able to anchor overnight, if at all. 

I wish I was wrong - but I'm also wishing I'd spoken up in 2016 when the original mistakes that lead us to this point were made by our boating organizations.

The people running our boating groups think they are right, they think they are doing the proper thing here. Bless them, their hearts are in the right place, but they are not doing what needs to be done and that has to change.

It's time to get angry and speak out. Today. Right now. We don't have any time left. If you're a  boater and don't want to lose your right to anchor in Florida, act now.