Posted by Claiborne | Posted on 09-27-2012
For the last week or so, there has been a lively discussion on the American Great Loop Cruisers’ Association forum (http://www.greatloop.org) about the issue of liveaboards, particularly as this issue relates to facilities in Florida. All of us at the Salty Southeast Cruisers’ Net are aware of the importance of this issue to the cruising community, and will soon make available a comprehensive, professionally researched list of marinas where liveaboards are welcome. Until that happy event, listen to what our fellow mariners have to say below!
This area is murky, complicated and not well understood by anyone, including many marina operators, and certainly not the public, and very certainly not by many cruisers! It may be that some privately held marinas are “looking the other way” in this relatively bad economy, but there are both laws and administrative regulations dealing with liveaboards. In Florida, the law defines liveaboards as persons who stay aboard their vessels for 10 days out of any 30 calendar days. Those days do not need to be contiguous. That is the *only* definition under Florida Law. The fact that you are not a Florida Resident, do not receive mail at the marina, intend to leave in 60 or 90 or 120 days and are transient, etc., etc., has nothing to do with it. If you stay aboard, the clock is running in FLorida on your liveaboard status.
The short story…
Riparian Lands (tidal lands up to the mean high tide line) are held in trust for the people of Florida by the State of Florida, and this trust is administered by the Florida Fish and Wildlife Commission. Since the bottom land is public, to operate a marina in Florida, on Riparian Lands, the operator must get a lease from the State to do so. The lease, like any lease, specifies what services the marina can offer. One of these services is “liveaboard” tenants. The state has been loathe over the past 30 years to allow startup or new marinas to provide liveaboard services. Liveabards poop in the water, don’tcha know. Some municipal marinas have gone through the hoops the state has mandated, and have obtaied a lease. I know of no new privately held marinas that have prevailed against the FWC bureaucracy.
Now, what complicates this further is that some marinas actually own their own bottom lands. One that I know of is Burnt Store Marina on Charlotte Harbor. In the early 60s, that land was bought, and the boat basins were dredged then. Until that building, those basins did not exist, and the land was privately held. So, even though there is tidal ebb and flood in those basins today, the land is not under FWC administrative controls because of how it evolved in that real estate, legal sense. Of course, today, you couldn’t get the permits to do that dredging, but there it is. So, yes, there are some privately-held marinas that can legally offer liveaboard tenancy, but not all, and maybe, not the majority.
So here’s the net: when you are asked to sign a long term dockage agreement, ask about liveaboard tenancy and have them point to it in writing; or add it to your contract in one of those “blank line” items.
How did we learn this stuff? Sanctuary and crew have wintered in Florida for the past 7 seasons. This will be year 8. In 2005/2006, we ran afoul of a marina in Sarasota Bay where we had a very unpleasant lesson in all of this, and ultimately had to move. It was a real PITA. In those years, the boating business was booming, people had money, diesel was $2.25 per gallon, and there were waiting lists at marinas. In 2012, not so much. So as I said, operators may be “looking the other way” with transients. Maybe even FWC is “looking the other way,” too. The Florida Marina Operators Association does have lots of clout in the State Legislature. But if the ax falls, the penalties to marinas can be severe, so my advice to you is, be careful with this. If the axman commeth towards the marina, you cannot be far behind.
That’s what I know. There’s much more painful detail, but that’ll give you a place to start your research.
Do cruisers know about any of this? The responses you’ve already had suggest that answer is, “no.” Do people care if they do know? Again, probably, “no.” Is there an “official” penalty to you? “No.” The worst case *for you* is that you’ll have to move to a qualified marina. Usually, to someplace less convenient and more expensive. If you’re only going to be there a month, you could probably wait ‘em out on the grounds that they didn’t give you proper notice to make other arrangements. But the aggravation… That’s your potential penalty.
Hope this is useful.
Peg and Jim Healy aboard Sanctuary
Currently at Rock Creek, Pasadena
Lots of good information but it may or may not be relevant. We have lived in marinas in Florida for over 20 years and even managed a few in the state. I have yet to encounter any problems with any marinas due to a ten day period and the marinas we managed had many liveaboards. Our original poster will find that marinas set their own time limits for what constitutes a liveaboard and when they charge accordingly. There are local municipalities such as Marco Island that have regulations restricting the number of days you can stay on a boat within their waters. The marinas have no choice. The state of Florida has restricted some marinas to the number of liveaboard slips they can have. Your 10 day requirements may very well come into play in those situations but only for the NON liveaboard slips in those designated marinas. Not every marina in Florida falls into this catagory so it makes things even more complicated. So my advise to the original poster is to plan their cruise, call the marinas probably before they even arrive in the state, find out that specific marinas policies and plan your stays accordingly. With the complications found here in the sunshine state, in 20 years we have never had a problem finding a slip, both short term or long term anywhere in the state that we traveled. We’re in Naples right now and have stayed in Fort Myers, Fort Myers Beach and now Naples, without any time limits or problems. It is more expensive than other states we have cruised in and Florida seems to have a plethora of additional charges for boaters. This will probably muddy the waters even more.
Live aboard Marinas. We really enjoy Cocoa Village Marina in Cocoa Fl on the Indian River between Titusville and Melbourne. Cocoa is a great town, good public transportation to Merritt Island to the Big box stores.
Robert & Helen Kovach
“Relevant” is a very interesting word. I definitely agree that individual cruisers may not run afoul of this. I’d even be OK with, “probably will not.” As I suggested, many people have never heard of it. Your personal testimony confirms that many marina managers have never heard of it, and many more do not understand it. But it’s there. Lurking… Sorta like “Sojourner Permits…” And I did – personally – run afoul of it. And I assure you, it becomes “relevant” if you have to move because the marina manager got caught ignoring it. My post did not address the point you raise on marina liveaboard fees and charges. That is a different topic entirely. You are quite correct that those local marina fees vary from place to place.
It is *not* correct that, “There are local municipalities such as Marco Island that have regulations restricting the number of days you can stay on a boat within their waters.” Is it possible you’re thinking of a different topic? All of that was struck down by the Florida Supreme Court in about 2005, and subsequently re-codified by the Florida Legislature in about 2006/2007. That had to do with “anchoring rights,” not “liveaboard tenancy” in a marina. Marco – over about the six years between 2004 and 2010 – was embroiled in a series of law suits over local anchoring restrictions against Dave Dumas. Dave is a super guy, by the way, and we all owe him a huge debt-of-gratitude for actually pursuing that against the city! The city lost those battles over-and-over again at every level of the Florida legal and legislative system. I think they have finally given up, facing another likely loss in their second attempt before the Florida Supreme Court. The Florida Legislature removed the right to restrict anchoring from all local jurisdictions throughout the state through a revision of Florida State statute in 2006, maybe 2007. (I’m doing this from memory…) (Ref: Florida Statute, 327.60 (3);
Anchoring rights has nothing to do with this conversation, of course, except that while Marco was in the process of wasting their money and good will fighting with Dave, they used their battle with Dave as PR leverage in the community to also pursue – in parallel – upgrading their operator’s lease for the Marco City Marina to provide liveaboard tenancy. The argument was, fallacious in my view, that liveaboard tenancy would replace the loss of anchoring space in the city. I don’t know if it’s all slips or just some in the marina that now have the tenancy option. I do know the city spent a lot of money doing it; state and local building permits, then re-permiting, new sanitary and shower facilities, new pump out facilities, OSHA and ADA compliance upgrades to the docks, buildings and grounds, etc.,
etc., and they did (finally) get it done. I believe tenancy has been part of their offerings portfolio for two full seasons now, but I admit I’m not current on that. I know there were several delays. Other than a couple of places that upgraded leases after Hurricane Charlie, justified on the destruction of neighboring marina facility space, it’s the only new liveaboard lease I know of in Florida in many, many years. Fisherman’s Village in Punta Gorda (Peace River) legally offers liveaboard tenancy, while the neighboring City Marina in PG – Laishley’s – cannot.
And as long as I’m at this, it can get even “murkier” – is that a word – in places with the dock-o-minium ownership model. One of the marinas in Bradenton has this situation, and I’m sure there are others. The marina facility occupies riparian lands. The marina has obtained a lease to operate from the State of Florida. The lease does not have “tenancy” as a lease option. But, have a look at local practice: private owners of slips at the marina may sublet to liveaboards; the marina may not offer liveaboard tenancy for their adjoining direct rental slips. When queried, the marina maintains a list of private owners willing to sublet their slips for the season. No, I have no speculation on how that situation could exist; it defies understanding. Did I mention, this is really murky stuff?
So all I’m suggesting here is, this one *can* bite the unsuspecting. I *speculate* that there may be less focus on it these days, given the poor economic times, but nonetheless, it’s there. And, there are enough places around these days that no one should have to be exposed to it… That is, *if* they know it’s there in the first place…
OK. I’m done. No more! Everyone’s sick of this. But, it’s like football. If you want to enjoy the game, you have to understand the rules. And, the refs in the Florida liveaboard game are at least as well qualified, and at least as alert, as the current NFL fill-ins!
Peg and Jim Healy aboard Sanctuary
Thanks Jim, but I think one issue needs clarifications. The requirement for Marco Island has nothing to do with the past attempts to to restrict anchoring. We are near Marco now and have inquired about long term dockage at about all of the marinas in the waters of Marco Island with the same results. We have been told by every marina manager, dockmaster and owner that Marco Island restricts liveaboard DOCKAGE to three months. After that you have to move off the boat or move the boat out of Marco jurisdiction. This was a follow up to their loss of the anchorages regulations but totally separate. Florida’s statewide anchorage law does not have an affect on dockage.
Let’s “murk” this up a little more-Jim has made reference to Florida Statute, 327.60 . This a copy of the liveaboard definition contained in that same Statute- “Live-aboard vessel” means:
(a) Any vessel used solely as a residence and not for navigation;
(b) Any vessel represented as a place of business or a professional or other commercial enterprise; or
(c) Any vessel for which a declaration of domicile has been filed pursuant to s. 222.17
My vessel, “Miss Grace” is and has always been intended for navigation. It is not my home, I own a home in Florida that is my permanent and legal residence. I have to question the understanding of this definition by marina’s that quote the “10 day rule” or charge extra for “liveaboard”. As far as I know, this definition is used for all Florida legislation. If that is not correct, please show me where I may find the other definition.
Capt. Pat Carter
Captain Pat Carter,
The problem is that there are ***at least*** two different definitions of “liveaboard” in Florida. The first is in F.S. 327. That is the statute that has to do with boats and boating; specifically, anchoring rights or boats in navigation.
The second is used by the Florida Department of Environmental Protection. It governs when the discussion is a marina operator “renting” “Sovereignty Lands” (riparian lands) from the State as the site of a marina. Because of this thread, I spent some time locating a template of the standard DEC marina lease online. It can be read by those interested – if any – here:
Paragraph 29 of the standard lease agreement contains the DEP’s definition of “liveaboard vessel” that started all this. Paragraph 1 contains the language that controls whether or not the marina can offer liveaboard tenancy as a service.
The above marina operator’s lease is based on DEC rule-making, which the DEP is empowered to do under Florida Statute. Those rules, once adopted, have the same force and effect as if they were statute adopted by the legislature itself.
For marina operators leasing riparian lands (Sovereignty Lands), the DEC lease controls, and it is as I previously stated it: 5 continuous days, 10 days in any 30-day period.
For the record, Pat, I ***did not*** invent this. This is government bureaucracy at it’s very finest. I just made an effort to understand it. As I said, if you’re gonna enjoy the game, you gotta know the rules…
Peg and Jim Healy, aboard Sanctuary
So, are we to be governed by the above 10 day limit if we are tourists and wish to spend 15-30 days in one particular Marina in order to explore the area by car ? surely a detriment to tourism via vessel, would be interesting to see it tested, I know that here in Canada that Municipalities who make a local by law cannot have it challenged in court unless proven it is against the Charter of Rights.
Go to the Ft Myers City Yacht Basin. Great staff, great downtown, great facilities. NO PROBLEM with live aboard but there was a $75 per month live aboard fee. we lived aboard and cruised SW FL for 4 years. Fantastic.
Hmmm. Where to start.
I agree with the idea that the issues involving rights, particularly Riparian rights is complex, and possibly “murky.” However, I don’t agree with all the legal analysis. My differences come from my understanding of these riparian rights from reading this document: http://www.llw-law.com/files/presentations/General%20Overview%20of%20Riparian%20Rights%20in%20Florida.pdf
It’s easy to get caught up in the minutia of how the statue defines liveaboards, number of days an agency or municipality says a livebaord can stay, etc. However, I believe the bigger issue is about marina owners property rights, especially riparian rights, as defined in the FL constitution and common law principles.
It is correct that once Florida was admitted to the union, it was granted title to *navigable* waters as part of state sovereignty, and has vested “ownership” of said title in the Board of Trustee of the Internal Improvement Funds (Trustees) by the Florida constitution. This body is the “owner” of the submerged lands of *navigable* waters. Now, what exactly does that mean? As owners, what restrictions can they place on the *common law* riparian rights of land owners that border navigable waters. These rights are established in the FL constitution, and clarified by court decision, mainly the FL supreme court through various decision dating back to 1918. The murkiness of understanding the property owner’s rights is the fact that riparian rights differ from fee-simple property ownership rights (e.g. bundle of sticks rights) and that these rights can inure to property owners and/or be modified by various devices of law.
Without boring everyone with too much amateur analysis of the law vs the practical application, here’s what I’ve come up with. Like everything governmental these days, there are common law rights, constitutional rights and statues which further define, and increasing infringe on these rights. Even worse, the proliferation of the fourth branch of government, the ADMINISTRATIVE branch, has given us a plethora of agencies that write their own “laws” which they codify in their administrative codes. This is certainly the case with agencies such as FWC and FL EPA. Local governments do it through their own municipal codes and rules. These agencies and municipalities write the rules to implement the statues. However, they do not fully examine the underlying constitutional and common law issues those statues are proposed to preserve and facilitate. They use the statues as a starting point to come up with the may rules and codes that are the rules handed to us.
So, I think what we have here is the State and local governments overstepping and overreaching, using devices and tactics such as leasing riparian lands held in trust by the state to upland marina owners and unconstitutionally restricting the rights of the marina owners by restricting liveaboards in the terms of the leases. Just because a statues or administrative code restricts rights doesn’t mean it’s legal (constitutional). The problem is that it takes a costly, lengthy legal battle to assert your constitutional rights. It would take a David Dumas effort to see a case thought to the FL Supreme court, since the arguments involve both constitutional and common-law matters — issues unlikely to be resolve in state appellate courts.
So, practically speaking there’s not much that can be done until a coalition of marina owners challenges the rules and fights for their rights as landowners, including the right to determine their own rules for liveaboards, like a free landowner should be able to do.
Will marina owners stand up for their rights? Not for resource and management intensive liveaboards who use the most facilities, utilities, and like Jim said, poop in the water. No, it’s just not worth it. And I think we will only see more overreaching by the legislature and the myriad administrative agencies to further restrict marinas from providing services that boaters want and need. I guess if the restriction of liveaboards really hurt the marina’s bottom line, then there would be more yelling and fighting to change the rules. Until then, I can’t see that happening.