Homeless Anchor out

[Montanan]

Originally Posted by newhaul

ok that's California and I don't consider it part of the United States :-):-).

Sounds to me that its not actually a regulation as much as a new way to fleece the masses.
Any where else ?

Not considering California, the greatest state within the Union not a part of the USA is quite nonsensical.
How about Florida, or do you consider that state also not a part of the Union?

There being two basis of authority held by the State of Florida.

Regulatory refers to the authority that allows an entity of the government,
such as Department of Environmental Protection, to limit certain activities on property, as well as on publicly owned lands, to some specific degree for the greater public good.
Other examples of regulatory authority that CAN AND DO regulate marinas are common and familiar include local zoning, county planning and building codes, and vehicle safety regulations.

• Proprietary refers to ownership authority. Most lands including - but not limited to - tidal lands, islands, sand bars, shallow banks, and lands
waterward of the ordinary high water line or mean high water line,
beneath navigable fresh water or beneath tidally influenced waters were
titled to the State of Florida when it became a state on March 3,
1845. Title to these lands is held by the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida. The State is responsible
for maintaining these submerged lands for a reasonable degree of public
use and access, and to protect the lands for future public use.
• Regulatory and Proprietary authorizations are “Linked”


In Florida, some marina operators own their submerged bottomlands. Most marinas do not own their submerged bottomlands but instead lease the bottom lands that are owned by the State of Florida which lease is granted by the Department of Environmental Protection.

Paragraph 29 of the standard sovereignty submerged land lease agreement contains the Department of Environmental Protection's definition of “liveaboard vessel”. The first paragraph [#1] contains the language that controls whether or not the marina can offer liveaboard tenancy as a service and how many liveaboard tenancies are permitted; an example thereof is provided below, in this instance for a marina for a multifamily docking facility and boat ramp with a Condominium Homeowners Association which lease explicitly prohibits liveaboard vessels.

Florida's liveaboard definition and limit of time.

A vessel docked at a facility and inhabited by a person or persons for five consecutive days OR a total of 10 days within a 30 day period.

If liveaboards are authorized in the lease, in no event shall a liveaboard status exceed six months within any 12 month period, nor shall any such vessel constitute a legal or primary residence.

[Montanan]

Further details regarding Florida's authority to regulate their submerged bottomlands.

Explanation of Sovereign Submerged Lands (SSL) and the Linkage Between Proprietary Authority and Regulatory Authority in ERP
Sovereign Submerged Lands (SSL) are those lands including but not limited to, tidal lands, islands, sand bars, shallow banks, and lands waterward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally-influenced waters, which the State of Florida acquired title to on March 3, 1845, by virtue of statehood, and which have not been heretofore conveyed or alienated. (18-21.003, Florida Administrative Code)
Prior to the merger into the Department of Environmental Protection (DEP), the Department of Environmental Regulation had regulatory jurisdiction over certain activities affecting air, water, and land. The Department of Natural Resources had proprietary jurisdiction over uses of sovereign submerged lands. The following explains the current proprietary and regulatory functions of DEP's Submerged Lands and Environmental Resource Permitting.
Regulatory authority allows an entity of the government, such as DEP, to limit certain activities on property, as well as on publicly owned lands, to some specific degree for the greater public good. DEP, in its regulatory capacity, is required by acts of the Florida Legislature, to protect the natural resources of the state, such as air, water and wildlife, to insure that these resources will be healthy and abundant for present and future generations. DEP's Submerged Lands and Environmental Resources Coordination program reviews applications for proposed works in wetlands and other surface waters, as well as works in uplands that can affect water quality and quantity, to ensure compliance with the Florida Administrative Code and Florida Statutes.
Proprietary authority: The State Legislature designated the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (Board of Trustees) in 1845. The Board of Trustees were given proprietary (ownership) authority over sovereign submerged lands (SSL) and their uses, and were held responsible for insuring the lands and the associated aquatic resources remained healthy and in abundance for present and future generations. All tidally influenced waters to the mean high water line and navigable fresh waterbodies to the ordinary high water line in existence when Florida became a state in 1845 are considered sovereign. In accordance with the Constitution of the State of Florida, these lands are held in trust by the state for all the people.
The Department of Environmental Protection, in addition to its regulatory capacity, acts as the staff to the Board of Trustees in the review of proposed uses of sovereign submerged lands (SSL). Projects proposing to conduct an activity in waters that are not SSL are required to meet regulatory standards only. A proposed activity located on SSL may be required to meet both regulatory and proprietary requirements as found in the Florida Statutes and Florida Administrative Code.
Linkage and Delegation Rules
Chapter 18-21, Florida Administrative Code (F.A.C.)

Two amendments were made to help streamline the process for obtaining both a regulatory and a proprietary authorization, referred to as the linkage rule and delegation rule. The amendments simplified and accelerated regulatory and proprietary reviews, issuances, and denials. Efficiency increases and cost decreases occurred for the regulated public and the State from the amendments allowing the staff of one agency to perform both regulatory and proprietary reviews for a given project.

The first amendment, Section 18-21.00401, F.A.C., known as the linkage rule, links the review and issuance (or denial) of a proprietary authorization to use sovereign submerged lands (SSL) with the review and issuance (or denial) of a regulatory authorization (an environmental resource permit, a wetland resource permit (grandfathered), or a joint coastal permit). Linkage eliminates situations where a regulatory permit is granted for an activity that does not qualify for a proprietary authorization, or vice versa.

A single application is used by people seeking both regulatory authorization and proprietary authorization.
Both forms of authorization follow a single time line regarding the completeness of the application and issuance or denial of the authorization. Failure to satisfy the time frames does not result in approval by default of the application to use SSL.
Regulatory authorizations are processed by the Department, as well as the Suwannee River Water Management District, the St. Johns River Water Management District, the Southwest Florida Water Management District, and the South Florida Water Management District (WMDs). An activity-based division of responsibilities between the agencies is used to determine which agency will process which permit application. The applicant interacts with only one state agency.

The second amendment, Section 18-21.0051, F.A.C., known as the delegation rule, gives the decision-making authority of the Board of Trustees, for certain* actions regarding the use of sovereign submerged lands, to the Department and to the above cited water management districts. The delegation shortens the time and reduces the number of levels of review for the proprietary decision-making process. The delegation also facilitates the concurrent processing of the linked applications (proprietary and regulatory) by the Department and the Districts, as described previously.

*Projects meeting the following thresholds are not delegated, and must appear before the Board of Trustees:
Docking facilities with more than 50 slips & modifications consisting of the addition of more than 10% of the number of existing slips where the total of the existing and proposed number of slips is more than 50;
Docking facilities having a preempted area of more than 50,000 sq. ft. & modifications consisting of the addition of more than 10% of the existing preempted area where the total of the existing and preempted area is more than 50,000 sq. ft.;
Private easements of more than 5 ac.;
The establishment of a mitigation bank; or
Any project found to be of concern to one or more Board member.

[newhaul]

Originally Posted by Montanan

Further details regarding Florida's authority to regulate their submerged bottomlands.

Explanation of Sovereign Submerged Lands (SSL) and the Linkage Between Proprietary Authority and Regulatory Authority in ERP
Sovereign Submerged Lands (SSL) are those lands including but not limited to, tidal lands, islands, sand bars, shallow banks, and lands waterward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally-influenced waters, which the State of Florida acquired title to on March 3, 1845, by virtue of statehood, and which have not been heretofore conveyed or alienated. (18-21.003, Florida Administrative Code)
Prior to the merger into the Department of Environmental Protection (DEP), the Department of Environmental Regulation had regulatory jurisdiction over certain activities affecting air, water, and land. The Department of Natural Resources had proprietary jurisdiction over uses of sovereign submerged lands. The following explains the current proprietary and regulatory functions of DEP's Submerged Lands and Environmental Resource Permitting.
Regulatory authority allows an entity of the government, such as DEP, to limit certain activities on property, as well as on publicly owned lands, to some specific degree for the greater public good. DEP, in its regulatory capacity, is required by acts of the Florida Legislature, to protect the natural resources of the state, such as air, water and wildlife, to insure that these resources will be healthy and abundant for present and future generations. DEP's Submerged Lands and Environmental Resources Coordination program reviews applications for proposed works in wetlands and other surface waters, as well as works in uplands that can affect water quality and quantity, to ensure compliance with the Florida Administrative Code and Florida Statutes.
Proprietary authority: The State Legislature designated the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (Board of Trustees) in 1845. The Board of Trustees were given proprietary (ownership) authority over sovereign submerged lands (SSL) and their uses, and were held responsible for insuring the lands and the associated aquatic resources remained healthy and in abundance for present and future generations. All tidally influenced waters to the mean high water line and navigable fresh waterbodies to the ordinary high water line in existence when Florida became a state in 1845 are considered sovereign. In accordance with the Constitution of the State of Florida, these lands are held in trust by the state for all the people.
The Department of Environmental Protection, in addition to its regulatory capacity, acts as the staff to the Board of Trustees in the review of proposed uses of sovereign submerged lands (SSL). Projects proposing to conduct an activity in waters that are not SSL are required to meet regulatory standards only. A proposed activity located on SSL may be required to meet both regulatory and proprietary requirements as found in the Florida Statutes and Florida Administrative Code.
Linkage and Delegation Rules
Chapter 18-21, Florida Administrative Code (F.A.C.)

Two amendments were made to help streamline the process for obtaining both a regulatory and a proprietary authorization, referred to as the linkage rule and delegation rule. The amendments simplified and accelerated regulatory and proprietary reviews, issuances, and denials. Efficiency increases and cost decreases occurred for the regulated public and the State from the amendments allowing the staff of one agency to perform both regulatory and proprietary reviews for a given project.

The first amendment, Section 18-21.00401, F.A.C., known as the linkage rule, links the review and issuance (or denial) of a proprietary authorization to use sovereign submerged lands (SSL) with the review and issuance (or denial) of a regulatory authorization (an environmental resource permit, a wetland resource permit (grandfathered), or a joint coastal permit). Linkage eliminates situations where a regulatory permit is granted for an activity that does not qualify for a proprietary authorization, or vice versa.

A single application is used by people seeking both regulatory authorization and proprietary authorization.
Both forms of authorization follow a single time line regarding the completeness of the application and issuance or denial of the authorization. Failure to satisfy the time frames does not result in approval by default of the application to use SSL.
Regulatory authorizations are processed by the Department, as well as the Suwannee River Water Management District, the St. Johns River Water Management District, the Southwest Florida Water Management District, and the South Florida Water Management District (WMDs). An activity-based division of responsibilities between the agencies is used to determine which agency will process which permit application. The applicant interacts with only one state agency.

The second amendment, Section 18-21.0051, F.A.C., known as the delegation rule, gives the decision-making authority of the Board of Trustees, for certain* actions regarding the use of sovereign submerged lands, to the Department and to the above cited water management districts. The delegation shortens the time and reduces the number of levels of review for the proprietary decision-making process. The delegation also facilitates the concurrent processing of the linked applications (proprietary and regulatory) by the Department and the Districts, as described previously.

*Projects meeting the following thresholds are not delegated, and must appear before the Board of Trustees:
Docking facilities with more than 50 slips & modifications consisting of the addition of more than 10% of the number of existing slips where the total of the existing and proposed number of slips is more than 50;
Docking facilities having a preempted area of more than 50,000 sq. ft. & modifications consisting of the addition of more than 10% of the existing preempted area where the total of the existing and preempted area is more than 50,000 sq. ft.;
Private easements of more than 5 ac.;
The establishment of a mitigation bank; or
Any project found to be of concern to one or more Board member.

I may have missed it but I saw no mention in all of that jargon any statement specific to a limiting number for living aboard a vessel in a Marina .

[Montanan]

Originally Posted by newhaul

And yet California and Florida are the coastal states with the worst problem of " homeless " living on boats that are anchored out.
Now I fully understand why that is the case.

Anchoring regulations are an entirely different set of regulations.

The State of Florida has two definitions of a liveaboard vessel, one for vessels that are at anchor and the other for vessels docked in marinas.

The primary reasons the two states have the worst problems is that they both are most conducive as to weather for living aboard and of course have huge shorelines and harbors and comparatively massive populations and high cost of housing. All these factors invoke the need for significant regulation to deal with the "problems" associated therewith.

As to Florida's local municipalities regulating anchoring in their waterways, copied below is one Advisory Opinion from the Attorney General. It is a bit dated there are likely newer advisory opinions.

Advisory Legal Opinion - AGO 85-45

Number: AGO 85-45
Date: May 31, 1985
Subject: Definition of live-aboard vessels

Mr. Thomas A. Bustin
City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33518-4748

RE: MUNICIPALITIES--Boats and boating

Dear Mr. Bustin:

This is in response to your request for my opinion on substantially the following questions:

1. Are vessels which are used as a person's primary residence "live-aboard vessels" for purposes of s. 327.60(2), F.S., even though they may also be used for recreational purposes?

2. What are the rights of navigation which a municipality is prohibited from regulating pursuant to s. 327.60(2), F.S., when engaged in by non-live-aboard vessels?

Inasmuch as both questions involve the application of s. 327.60(2), F.S., your questions are related and will be answered together.

Your inquiry states that the City of Clearwater maintains a marine police patrol which is engaged in the regulation of local maritime traffic and the enforcement of state statutes governing marine activity. You further state that the city officials have encountered considerable difficulty in applying the provisions of s. 327.60(2), F.S., in that "it is extremely difficult to ascertain whether a vessel is a 'live-aboard vessel' for the purposes of this statute." Moreover, "municipal officials are at a loss to understand when non-live aboard vessels are engaged in the exercise of rights of navigation, and therefore outside the jurisdiction of the municipal authorities." With respect to the definition of "live-aboard vessel" in s. 327.02(13), F.S. (1984 Supp.), you ask specifically whether "the occasional recreational use ordinarily associated with any vessel, including a house boat, deprive[s] municipal authorities of jurisdiction?" Finally, as to the exercise of rights of navigation by non-live-aboard vessels, you state that city officials are in doubt as to their authority to regulate the mooring and anchoring of such vessels.

Section 327.60, F.S., provides as follows:

"327.60 Local regulations; limitations.--

(1) The provisions of ss. 327.01-327.11, 327.13-327.16, 327.18, 327.19, 327.28, 327.30-327.40, 327.44-327.51, 327.54, 327.56, and 327.65 shall govern the operation, equipment, and all other matters relating thereto whenever any vessel shall be operated upon the waterways or when any activity regulated hereby shall take place thereon. Nothing in these sections shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels, except that no such ordinance or local law may apply to the Florida Intracoastal Waterway and except that such ordinances or local laws shall be operative only when they are not in conflict with this chapter or any amendments thereto or regulations thereunder.

(2) Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions. However, local governmental authorities are prohibited from regulating the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation."

"Live-aboard vessels" are defined for purposes of Chs. 327 and 328, F.S., in s. 327.02(13), F.S. (1984 Supp.), in the following terms:

"(13) "Live-aboard vessel" means:

(a) Any vessel used solely as a residence;

or

(b) Any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence.

A commercial fishing boat is expressly excluded from the term 'live-aboard vessel.'"

From this alternative statutory definition, it clearly appears that a vessel can be a "live-aboard vessel" under s. 327.02(13)(b), F.S. (1984 Supp.), even if it is not used solely as a residence, as long as it is "represented as a place of business, a professional or other commercial enterprise, or a legal residence." (e.s.) You suggest that the criteria applied by Florida courts in defining the term "legal residence" "are difficult to apply to any circumstances, but especially difficult in relation to vessels." To the extent that the courts in Ogden v. Ogden, 33 So.2d 870 (Fla. 1947), and Brown v. Brown, 123 So.2d 382 (2 D.C.A. Fla.,1960), have emphasized that the best single evidence of legal residence is where the person says it is, you further suggest that "if municipal authorities were required to ask an individual to acknowledge that the vessel is his 'legal residence,' the municipal authorities would be at the mercy of the public in determining where their jurisdiction lies" for purposes of s. 327.60(2), F.S. Accordingly, you alternatively phrase your first question as an inquiry into the indicia municipal marine patrol officers may look to assist in determining whether a vessel is a legal residence and thus within the definition of "live-aboard vessel" at s. 327.02(13)(b), F.S.

A "legal residence" is a location where a person is presently living with the present intention of making it his permanent abode. Minick v. Minick, 149 So. 483 (Fla. 1933); Wade v. Wade, 113 So. 374 (Fla. 1927). And see Walker v. Harris, 398 So.2d 955, 958 (4 D.C.A. Fla., 1981), stating: "A person may have several temporary local residences, but can have only one legal residence. A legal residence, or domicile, is the place where a person has fixed an abode with the present intention of making it their [sic] permanent home." See also Black's Law Dictionary 807 (5th Ed. 1979), defining "legal residence" as "[p]ermanent fixed place of abode which person intends to be his residence and to which he intends to return despite . . . temporary absences." While subjective intention is the best evidence of "legal residence," Florida courts have clearly recognized that residence may be established by objective facts as well. See Brown v. Brown, supra, at 383, stating that "residence is a matter of objective fact." See also Walker v. Harris, supra, at 958, stating that, although subjective intent is the best proof of domicile, "[t]his is not to suggest that proof of legal residence cannot be measured by objective factors[.]"

Therefore, I am of the opinion that vessels which are used as a person's primary residence may be "live-aboard vessels" for purposes of municipal regulation permitted by s. 327.60(2), F.S., even though they are not used solely as a residence but are also used for recreational purposes, if such vessels are represented as such person's "legal residence" pursuant to s. 327.02(13)(b), F.S. (1984 Supp.), and that the determination of whether such vessels are represented as a person's legal residence may be based on a combination of the person's subjective intent and objective facts. However, this office ordinarily refrains from resolving questions of fact in order to avoid an unwarranted intrusion into the province of the judiciary; thus, I must decline to discuss specific objective "indicia" from which municipal marine patrol officers may infer that a vessel is a "legal residence" and therefore a "live-aboard vessel" for purposes of s, 327.60(2). Such questions of fact can only be resolved by a court of law in appropriate judicial proceedings. See, e.g., the court's discussion of the testimony of record in Walker v. Harris, supra; and the relative weight to be accorded thereto. Cf. United States v. Calhoun, 566 F.2d 969 (5th Cir. 1978) (court's discussion of objective facts in evidence supporting determination of taxpayer's "legal residence").

Finally, you inquire as to the meaning of the term "rights of navigation," as that term is used in s. 327.60(2), F.S. While the statute provides that nothing in the section shall be construed to prohibit a local government from enacting or enforcing regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions, local governmental authorities are prohibited from regulating "the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation." I am unaware of any appellate decision of the courts of this state interpreting this provision of s. 327.60(2). But see generally Ferry Pass Inspectors' and Shippers' Association v. White's River Inspectors' and Shippers' Association, 48 So. 643 (Fla. 1909); Silver Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th Cir.1931), cert. denied, 284 U.S. 649 (1931) ("The public right of navigation entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property gratuitously or for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in common"); 65 C.J.S. Navigable Waters s. 22.

As you have noted in supplemental material attached to your inquiry, "[i]t is clear . . . from the statutory language itself that the legislature intended that at least in some instances anchorage engages the exercise of rights of navigation [since] [t]o read the statute otherwise would be to nullify its meaning entirely." Cf. Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla. 1962) (it should never be presumed that legislature intended to enact purposeless, and therefore useless legislation); Smith v. Piezo Technology and Professional Administrators, 427 So.2d 182 (Fla. 1983). Moreover, public rights on navigable waters are not generally restricted to navigation in the strict sense but also encompass such incidental rights as are necessary to render the broader rights reasonably available, including the right of the navigator to anchor and to moor without unreasonably obstructing others' navigation rights. 65 C.J.S. Navigable Waters s. 22, at p. 135. But see Hall v. Wantz, 57 N.W.2d 462 (Mich. 1953), holding that the public right of navigation does not include as incident thereto the right to anchor indefinitely on riparian owner's premises, particularly when such anchorage is attended with dumping of refuse, pollution of waters, and consequent impairment of riparian owner's use and enjoyment of his property. Thus, it would appear that the plain statutory language of s. 327.60(2) and the common-law inclusion of rights of anchorage as an element of the exercise of rights of navigation compel the conclusion that a municipality is prohibited from regulating the anchorage of non-live aboard vessels when such anchorage is incident to the exercise of rights of navigation.

Therefore, unless and until legislatively or judicially determined otherwise, I am of the opinion that vessels which are used as a person's primary residence may be "live-aboard vessels" for purposes of municipal regulation permitted by s. 327.60(2), F.S., even though they are not used solely as a residence but are also used for recreational purposes, if such vessels are represented as such person's "legal residence" pursuant to s. 327.02(13)(b), F.S. (1984 Supp.); the determination of whether such vessels are represented as a person's legal residence may be based on a combination of the person's subjective intent and objective facts; in addition, the plain statutory language of s. 327.60(2) and the inclusion of rights of anchorage as an element of the exercise of rights of navigation compel the conclusion that a municipality is prohibited from regulating the anchorage of non-live-aboard vessels when such anchorage is incident to the exercise of rights of navigation.

Sincerely,

Jim Smith
Attorney General

Prepared by:

Kent L. Weissinger
Assistant Attorney General

[Montanan]

Originally Posted by newhaul

I may have missed it but I saw no mention in all of that jargon any statement specific to a limiting number for living aboard a vessel in a Marina .

As to the Florida owned lands, the limitation as to liveaboard usage is specific to the sovereign submerged lands lease. Liveaboard usage will be explicitly stated in the First Paragraph thereof which defines the agreed to use of the lands.

One will often find local zoning regulations that define the uses of both private and public lands, including therein marinas. And of course there are building codes, that can restrict occupancy.

A bit like peeling through the layers of an onion.

By way of example, the marina's uses and construction can be regulated under the requisite compliance to Americans with Disabilities Act and Amendments thereto. e.g. access issues, lifts, shower and toilet facilities, etc.

[newhaul]

Originally Posted by Montanan

Anchoring regulations are an entirely different set of regulations.

The State of Florida has two definitions of a liveaboard vessel, one for vessels that are at anchor and the other for vessels docked in marinas.

The primary reasons the two states have the worst problems is that they both are most conducive as to weather for living aboard and of course have huge shorelines and harbors and comparatively massive populations and high cost of housing. All these factors invoke the need for significant regulation to deal with the "problems" associated therewith.

As to Florida's local municipalities regulating anchoring in their waterways, copied below is one Advisory Opinion from the Attorney General. It is a bit dated there are likely newer advisory opinions.

Advisory Legal Opinion - AGO 85-45

Number: AGO 85-45
Date: May 31, 1985
Subject: Definition of live-aboard vessels

Mr. Thomas A. Bustin
City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33518-4748

RE: MUNICIPALITIES--Boats and boating

Dear Mr. Bustin:

This is in response to your request for my opinion on substantially the following questions:

1. Are vessels which are used as a person's primary residence "live-aboard vessels" for purposes of s. 327.60(2), F.S., even though they may also be used for recreational purposes?

2. What are the rights of navigation which a municipality is prohibited from regulating pursuant to s. 327.60(2), F.S., when engaged in by non-live-aboard vessels?

Inasmuch as both questions involve the application of s. 327.60(2), F.S., your questions are related and will be answered together.

Your inquiry states that the City of Clearwater maintains a marine police patrol which is engaged in the regulation of local maritime traffic and the enforcement of state statutes governing marine activity. You further state that the city officials have encountered considerable difficulty in applying the provisions of s. 327.60(2), F.S., in that "it is extremely difficult to ascertain whether a vessel is a 'live-aboard vessel' for the purposes of this statute." Moreover, "municipal officials are at a loss to understand when non-live aboard vessels are engaged in the exercise of rights of navigation, and therefore outside the jurisdiction of the municipal authorities." With respect to the definition of "live-aboard vessel" in s. 327.02(13), F.S. (1984 Supp.), you ask specifically whether "the occasional recreational use ordinarily associated with any vessel, including a house boat, deprive[s] municipal authorities of jurisdiction?" Finally, as to the exercise of rights of navigation by non-live-aboard vessels, you state that city officials are in doubt as to their authority to regulate the mooring and anchoring of such vessels.

Section 327.60, F.S., provides as follows:

"327.60 Local regulations; limitations.--

(1) The provisions of ss. 327.01-327.11, 327.13-327.16, 327.18, 327.19, 327.28, 327.30-327.40, 327.44-327.51, 327.54, 327.56, and 327.65 shall govern the operation, equipment, and all other matters relating thereto whenever any vessel shall be operated upon the waterways or when any activity regulated hereby shall take place thereon. Nothing in these sections shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels, except that no such ordinance or local law may apply to the Florida Intracoastal Waterway and except that such ordinances or local laws shall be operative only when they are not in conflict with this chapter or any amendments thereto or regulations thereunder.

(2) Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions. However, local governmental authorities are prohibited from regulating the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation."

"Live-aboard vessels" are defined for purposes of Chs. 327 and 328, F.S., in s. 327.02(13), F.S. (1984 Supp.), in the following terms:

"(13) "Live-aboard vessel" means:

(a) Any vessel used solely as a residence;

or

(b) Any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence.

A commercial fishing boat is expressly excluded from the term 'live-aboard vessel.'"

From this alternative statutory definition, it clearly appears that a vessel can be a "live-aboard vessel" under s. 327.02(13)(b), F.S. (1984 Supp.), even if it is not used solely as a residence, as long as it is "represented as a place of business, a professional or other commercial enterprise, or a legal residence." (e.s.) You suggest that the criteria applied by Florida courts in defining the term "legal residence" "are difficult to apply to any circumstances, but especially difficult in relation to vessels." To the extent that the courts in Ogden v. Ogden, 33 So.2d 870 (Fla. 1947), and Brown v. Brown, 123 So.2d 382 (2 D.C.A. Fla.,1960), have emphasized that the best single evidence of legal residence is where the person says it is, you further suggest that "if municipal authorities were required to ask an individual to acknowledge that the vessel is his 'legal residence,' the municipal authorities would be at the mercy of the public in determining where their jurisdiction lies" for purposes of s. 327.60(2), F.S. Accordingly, you alternatively phrase your first question as an inquiry into the indicia municipal marine patrol officers may look to assist in determining whether a vessel is a legal residence and thus within the definition of "live-aboard vessel" at s. 327.02(13)(b), F.S.

A "legal residence" is a location where a person is presently living with the present intention of making it his permanent abode. Minick v. Minick, 149 So. 483 (Fla. 1933); Wade v. Wade, 113 So. 374 (Fla. 1927). And see Walker v. Harris, 398 So.2d 955, 958 (4 D.C.A. Fla., 1981), stating: "A person may have several temporary local residences, but can have only one legal residence. A legal residence, or domicile, is the place where a person has fixed an abode with the present intention of making it their [sic] permanent home." See also Black's Law Dictionary 807 (5th Ed. 1979), defining "legal residence" as "[p]ermanent fixed place of abode which person intends to be his residence and to which he intends to return despite . . . temporary absences." While subjective intention is the best evidence of "legal residence," Florida courts have clearly recognized that residence may be established by objective facts as well. See Brown v. Brown, supra, at 383, stating that "residence is a matter of objective fact." See also Walker v. Harris, supra, at 958, stating that, although subjective intent is the best proof of domicile, "[t]his is not to suggest that proof of legal residence cannot be measured by objective factors[.]"

Therefore, I am of the opinion that vessels which are used as a person's primary residence may be "live-aboard vessels" for purposes of municipal regulation permitted by s. 327.60(2), F.S., even though they are not used solely as a residence but are also used for recreational purposes, if such vessels are represented as such person's "legal residence" pursuant to s. 327.02(13)(b), F.S. (1984 Supp.), and that the determination of whether such vessels are represented as a person's legal residence may be based on a combination of the person's subjective intent and objective facts. However, this office ordinarily refrains from resolving questions of fact in order to avoid an unwarranted intrusion into the province of the judiciary; thus, I must decline to discuss specific objective "indicia" from which municipal marine patrol officers may infer that a vessel is a "legal residence" and therefore a "live-aboard vessel" for purposes of s, 327.60(2). Such questions of fact can only be resolved by a court of law in appropriate judicial proceedings. See, e.g., the court's discussion of the testimony of record in Walker v. Harris, supra; and the relative weight to be accorded thereto. Cf. United States v. Calhoun, 566 F.2d 969 (5th Cir. 1978) (court's discussion of objective facts in evidence supporting determination of taxpayer's "legal residence").

Finally, you inquire as to the meaning of the term "rights of navigation," as that term is used in s. 327.60(2), F.S. While the statute provides that nothing in the section shall be construed to prohibit a local government from enacting or enforcing regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions, local governmental authorities are prohibited from regulating "the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation." I am unaware of any appellate decision of the courts of this state interpreting this provision of s. 327.60(2). But see generally Ferry Pass Inspectors' and Shippers' Association v. White's River Inspectors' and Shippers' Association, 48 So. 643 (Fla. 1909); Silver Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th Cir.1931), cert. denied, 284 U.S. 649 (1931) ("The public right of navigation entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property gratuitously or for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in common"); 65 C.J.S. Navigable Waters s. 22.

As you have noted in supplemental material attached to your inquiry, "[i]t is clear . . . from the statutory language itself that the legislature intended that at least in some instances anchorage engages the exercise of rights of navigation [since] [t]o read the statute otherwise would be to nullify its meaning entirely." Cf. Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla. 1962) (it should never be presumed that legislature intended to enact purposeless, and therefore useless legislation); Smith v. Piezo Technology and Professional Administrators, 427 So.2d 182 (Fla. 1983). Moreover, public rights on navigable waters are not generally restricted to navigation in the strict sense but also encompass such incidental rights as are necessary to render the broader rights reasonably available, including the right of the navigator to anchor and to moor without unreasonably obstructing others' navigation rights. 65 C.J.S. Navigable Waters s. 22, at p. 135. But see Hall v. Wantz, 57 N.W.2d 462 (Mich. 1953), holding that the public right of navigation does not include as incident thereto the right to anchor indefinitely on riparian owner's premises, particularly when such anchorage is attended with dumping of refuse, pollution of waters, and consequent impairment of riparian owner's use and enjoyment of his property. Thus, it would appear that the plain statutory language of s. 327.60(2) and the common-law inclusion of rights of anchorage as an element of the exercise of rights of navigation compel the conclusion that a municipality is prohibited from regulating the anchorage of non-live aboard vessels when such anchorage is incident to the exercise of rights of navigation.

Therefore, unless and until legislatively or judicially determined otherwise, I am of the opinion that vessels which are used as a person's primary residence may be "live-aboard vessels" for purposes of municipal regulation permitted by s. 327.60(2), F.S., even though they are not used solely as a residence but are also used for recreational purposes, if such vessels are represented as such person's "legal residence" pursuant to s. 327.02(13)(b), F.S. (1984 Supp.); the determination of whether such vessels are represented as a person's legal residence may be based on a combination of the person's subjective intent and objective facts; in addition, the plain statutory language of s. 327.60(2) and the inclusion of rights of anchorage as an element of the exercise of rights of navigation compel the conclusion that a municipality is prohibited from regulating the anchorage of non-live-aboard vessels when such anchorage is incident to the exercise of rights of navigation.

Sincerely,

Jim Smith
Attorney General

Prepared by:

Kent L. Weissinger
Assistant Attorney General

I get all that and what constitutes a liveaboard by legal definition is not in question .
What I did not see was a specific reference to the number of liveaboards that may be slipped in a Marina .

My marina currently has an out 30% liveaboard . ( there is a long list of people wanting in for liveaboard ) that number would be higher but there are no available slips . We are full for the winter.

The city marina across the inlet has at least 20% liveaboard year round and 30% or a bit more in winter. ( they are just a lot more expensive than the private marina I'm in now. .)

[Montanan]

Linked below is the Port of Everett Washington policy for liveaboard tenants.
Port of Everett Liveaboard Policy

Copied is the portion of most relevancy as to limitation of occupancy.

Additionally, the total number of long-term liveaboard customers cannot exceed ten percent (10%) of the total number of moorage slips in the marina in accordance with the City’s zoning excluding residents that liveaboard for less than four months in a calendar year.

Liveaboard vessels are to be dispersed throughout the marinas based upon the overall safety and security of the entire Port of Everett facility and provide support to the marina and boater security.

Definition The Port defines a liveaboard customer to be any persons who use their vessel as a primary full time residence while moored at the marina. Full time residence is defined as being when an individual resides on that vessel for a period of time in excess of 20 days. If the Port suspects a person may be an unregistered and unauthorized liveaboard customer, proof of residency will be requested.

[newhaul]

Originally Posted by Montanan

Not considering California, the greatest state within the Union not a part of the USA is quite nonsensical.
]

you mean the state with the 3rd highest number of homeless in America ?
You mean one of the only places in the first world that the bubonic plague is actually a serious health concern?
Or is it the fact that the major cities on the coast all seem to have a serious human waste issue on the streets and in the storm sewer system ( the ones that go direct to the sea.) ?

And they blame the boaters on the sewage issue .
California used to be a real nice place back when I was stationed there .
It has really changed in the last 30 years and not for the good.

[Montanan]

Originally Posted by newhaul

I get all that and what constitutes a liveaboard by legal definition is not in question .
What I did not see was a specific reference to the number of liveaboards that may be slipped in a Marina .

My marina currently has an out 30% liveaboard . ( there is a long list of people wanting in for liveaboard ) that number would be higher but there are no available slips . We are full for the winter.

The city marina across the inlet has at least 20% liveaboard year round and 30% or a bit more in winter. ( they are just a lot more expensive than the private marina I'm in now. .)

Do not confuse the subject matters. There are regulations regarding liveaboard anchoring and then there are regulations regarding liveaboard docking in a marina.

This post you just replied to was explicitly regarding municipal regulation of liveaboard at anchor, not the municipalities regulation of liveaboard at marinas. The municipality can easily regulate the number of liveaboards in marinas via the zoning ordinances. The State of Florida regulates the number of liveaboards in marinas located on the State's submerged lands via the terms of the lease with the marina operator.

[newhaul]

Originally Posted by Montanan

Do not confuse the subject matters. There are regulations regarding liveaboard anchoring and then there are regulations regarding liveaboard docking in a marina.

This post you just replied to was explicitly regarding municipal regulation of liveaboard at anchor, not the municipalities regulation of liveaboard at marinas. The municipality can easily regulate the number of liveaboards in marinas via the zoning ordinances. The State of Florida regulates the number of liveaboards in marinas located on the State's submerged lands via the terms of the lease with the marina operator.

I saw no confusion . Your post did not state specifics or specific regulations wrt number of liveaboards .

[Discovery 15797]

All of this legal interpretation and misinterpretation may soon be mute points.

With the recent decision by the 9th circus court of appeals WRT stripping cities of their abilities to enforce anti-camping laws and other ordinances intended to protect public spaces and support overall public health, it is only a matter of time before a group of "homeless" people who are living on derelict boats see their day in court claiming the gov't fails to provide adequate "affordable" housing.

Then this community will not be discussing whether a city has the ability to limit anchoring, but asking for advice on where to anchor without being accosted or exposed to health risks, and bitching about the over-abundance of derelict vessels occupying the safest anchorages.

[Montanan]

[QUOTE=newhaul;3067432]you mean the state with the 3rd highest number of homeless in America ?
You mean one of the only places in the first world that the bubonic plague is actually a serious health concern?
Or is it the fact that the major cities on the coast all seem to have a serious human waste issue on the streets and in the storm sewer system ( the ones that go direct to the sea.) ?

And they blame the boaters on the sewage issue .
California used to be a real nice place back when I was stationed there .
It has really changed in the last 30 years and not for the good.[/QUOTE]

I would agree that it is not as nice of a place to live as it used to be but despite its faults it remains a remarkable place. I first lived in California beginning in 1965, initially Marin County and then moved to Piedmont in the East Bay. The population was about 1/2 it is now. Silicon Valley did not exist at that time, Santa Clara County was the largest fruit growing county in the country, orchards and row crops. Stanford was called The Farm for a reason. I moved away from the Bay Area in 1990 to Montana when my daughter was two years old so as to have her grow up in a less populated environment, albeit much colder and longer winters. We sold our two bedroom condo in Redwood Shores for $250,000 in 1990, the same units now twenty years older sell for $1,000,000. The two bedroom apartment I rented in Menlo Park in the early 1980 now rents for fully ten times what I paid. With housing costs so extreme I can fully understand the issue of homelessness becoming much larger and more difficult to contend with.

Montana is also called, The Big Sky State, and The Last Best Place.
President Lincoln in 1864 spoke affectionately of Montana when he signed the Organic Act creating the Territory. Montana received its Statehood in 1889. Reference image below. IMHO, Montana may not be the greatest state, just the most perfect.

[newhaul]

[QUOTE=Montanan;3067446]

Originally Posted by newhaul

you mean the state with the 3rd highest number of homeless in America ?
You mean one of the only places in the first world that the bubonic plague is actually a serious health concern?
Or is it the fact that the major cities on the coast all seem to have a serious human waste issue on the streets and in the storm sewer system ( the ones that go direct to the sea.) ?

And they blame the boaters on the sewage issue .
California used to be a real nice place back when I was stationed there .
It has really changed in the last 30 years and not for the good.[/QUOTE]

I would agree that it is not as nice of a place to live as it used to be but despite its faults it remains a remarkable place. I first lived in California beginning in 1965, initially Marin County and then moved to Piedmont in the East Bay. The population was about 1/2 it is now. Silicon Valley did not exist at that time, Santa Clara County was the largest fruit growing county in the country, orchards and row crops. Stanford was called The Farm for a reason. I moved away from the Bay Area in 1990 to Montana when my daughter was two years old so as to have her grow up in a less populated environment, albeit much colder and longer winters. We sold our two bedroom condo in Redwood Shores for $250,000 in 1990, the same units now twenty years older sell for $1,000,000. The two bedroom apartment I rented in Menlo Park in the early 1980 now rents for fully ten times what I paid. With housing costs so extreme I can fully understand the issue of homelessness becoming much larger and more difficult to contend with.

Montana is also called, The Big Sky State, and The Last Best Place.
President Lincoln in 1864 spoke affectionately of Montana when he signed the Organic Act creating the Territory. Montana received its Statehood in 1889. Reference image below. IMHO, Montana may not be the greatest state, just the most perfect.

I left Cali in august of 90 myself last port was Alameda NAS .

As to Montana I would argue that one with you . My family is all over the east half of Wyoming. Sheridan to Cheyenne and west to hells half acre .
But that's for another thread. :-):-):-):-)

[Montanan]

[QUOTE=newhaul;3067457]

Originally Posted by Montanan

I left Cali in august of 90 myself last port was Alameda NAS .

As to Montana I would argue that one with you . My family is all over the east half of Wyoming. Sheridan to Cheyenne and west to hells half acre .
But that's for another thread. :-):-):-):-)

Spent a lot of time at the Alameda NAS. Sailing in the lagoon, golfing, going to the movies and shopping at the PX and commissary, touring the ships and submarines.

Wyoming is an even less populated state. My Dad was stationed at Warren in Cheyenne, oldest brother was born there.

When my Mom was learning to sail in the lagoon at the NAS, the aircraft carrier Enterprise [the Big E] was moored on the east side. A couple of seaman onboard the flight deck decided to have fun by repeatedly yelling at her to WATCH OUT LADY when she was sailing in her tiny El Toro towards the ship. She kept looking about trying to figure out what the seaman were warning her of. She lost her balance fell onto her back in the tiny boat and proceed to crash directly into the Big E's starboard side about midship. The young seaman then elevated their Fun by apparently reporting the collision with the ship to the Officer on Duty because klaxons were set off and reports over the hailing speakers were ordering everyone aboard to report to their collision workstations. Lot's of commotion and then officers started to appear and look over the side to see the collision and assess the situation. The crew aboard the Big E became much relieved to find out their ship was not damaged and that my Mom and her boat were also not imperilled. They sent an officer over from the ship to the recreational boat dock to check up on her status. All was good and much laughter. My Dad was a retired Air Force Colonel but was active in senior levels of administering the logistics of supply of material and personnel to Vietnam during the war years and was well known by the NAS and the Oakland Naval Supply Center in Oakland. The officer indicated that the event actually was a good practice exercise of the remaining skeleton crew aboard the vessel, albeit the two young seaman were going to get a dressing down by the Captain because when they first reported the collision, they failed to indicate that it was nothing but a small wooden dinghy colliding with the vast, moored ship so the OD's response was to activate the full collision procedures.

It remained a great bit of family teasing with my Mom, whenever we went sailing, particularly if she was at the helm. Not every sailor gets to ram a massive aircraft carrier and lives to tell the story. Security around naval ships has tightened quite a bit, particularly after the Cole incident.

As kids we used to routinely walk up the gangplanks and ask to be given tours of the various ships and then be given extensive guided tours of almost the entire vessel and meet the commanders and be feed in the Officers mess.

[newhaul]

[QUOTE=Montanan;3067476]

Originally Posted by newhaul

Spent a lot of time at the Alameda NAS. Sailing in the lagoon, golfing, going to the movies and shopping at the PX and commissary, touring the ships and submarines.

Wyoming is an even less populated state. My Dad was stationed at Warren in Cheyenne, oldest brother was born there.

When my Mom was learning to sail in the lagoon at the NAS, the aircraft carrier Enterprise [the Big E] was moored on the east side. A couple of seaman onboard the flight deck decided to have fun by repeatedly yelling at her to WATCH OUT LADY when she was sailing in her tiny El Toro towards the ship. She kept looking about trying to figure out what the seaman were warning her of. She lost her balance fell onto her back in the tiny boat and proceed to crash directly into the Big E's starboard side about midship. The young seaman then elevated their Fun by apparently reporting the collision with the ship to the Officer on Duty because klaxons were set off and reports over the hailing speakers were ordering everyone aboard to report to their collision workstations. Lot's of commotion and then officers started to appear and look over the side to see the collision and assess the situation. The crew aboard the Big E became much relieved to find out their ship was not damaged and that my Mom and her boat were also not imperilled. They sent an officer over from the ship to the recreational boat dock to check up on her status. All was good and much laughter. My Dad was a retired Air Force Colonel but was active in senior levels of administering the logistics of supply of material and personnel to Vietnam during the war years and was well known by the NAS and the Oakland Naval Supply Center in Oakland. The officer indicated that the event actually was a good practice exercise of the remaining skeleton crew aboard the vessel, albeit the two young seaman were going to get a dressing down by the Captain because when they first reported the collision, they failed to indicate that it was nothing but a small wooden dinghy colliding with the vast, moored ship so the OD's response was to activate the full collision procedures.

It remained a great bit of family teasing with my Mom, whenever we went sailing, particularly if she was at the helm. Not every sailor gets to ram a massive aircraft carrier and lives to tell the story. Security around naval ships has tightened quite a bit, particularly after the Cole incident.

As kids we used to routinely walk up the gangplanks and ask to be given tours of the various ships and then be given extensive guided tours of almost the entire vessel and meet the commanders and be feed in the Officers mess.

I was on the chuck wagon ( Carl Vinson ) on the south side of pier 3 .
From 86 to 90 .