Item R04BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: November 17.2010 - PK Department: County Attorney
Bulk Item: Yes X No _ Staff Contact Person: Christine Limbert-Barrows #3475
AGENDA ITEM WORDING:
Approval to advertise a public hearing to consider adoption of an ordinance amending Sections 26-1,
26-96 and 26-98 of the Monroe County Code to expand the prohibition against diving or snorkeling in
any manmade water body or marina, or within 300 ft. of an improved residential or commercial
shoreline, to include the 3 days prior to the start of mini -season and continuing through mini -season
and for the first 5 days of commercial lobster season for a total of 10 days.
ITEM BACKGROUND:
In response to the volume of complaints from property owners and the ever-increasing public safety
and environmental issues resulting from the 2-day spiny lobster mini -season, in 2003 the BOCC
adopted Ordinance No. 044-2003 to prohibit diving/snorkeling in any manmade waterbody or marina
or within 300 ft. of an improved residential or commercial shoreline during the entirety of the 2-day
mini -season for spiny lobster. Still, each year there continues to be an increased detrimental impact on
the community, straining law enforcement and emergency services who must respond to the numerous
accidents, collisions and citizen complaints and increase their efforts to prevent or minimize
environmental damage to our fragile environment. The expansion of the prohibition period to include
the 3 days prior to the start of mini -season and continuing through mini -season and for the first 5 days
of commercial lobster season will extend the period of prevention and law enforcement efforts and
provide added relief to Keys residents and property owners.
PREVIOUS RELEVANT BOCC ACTION:
12/17/2003 Ordinance No. 044-2003 prohibiting diving/snorkeling in any manmade waterbody or
marina or within 300 ft. of an improved residential or commercial shoreline during the entirety of the
2-day sport season for spiny lobster
6/18/2003 Ordinance No. 020-2003 further defining "navigable canal" and "man-made water body"
2/19/2003 Ordinance No. 003-2003 Established "No Discharge Zone" (see Exhibit A - Map)
CONTRACT/AGREEMENT CHANGES:
Sec. 26-1 defines "commercial lobster season"; Sec. 26-96 adds "and commercial lobster season";
Sec. 26-98 expands prohibition to include "beginning three (3) days prior to the opening of "and for
the first five (5) days of commercial lobster season". Sec. 26-98 deletes map and signage requirements.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No _
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH
APPROVED BY: County Att�1!1_
DOCUMENTATION: Included
DISPOSITION•
Revised 7/09
OMB/Purchasing Risk Management
X Not Required
AGENDA ITEM #
Year
MAYOR MURPHY
ORDINANCE NO. - 2010
AN ORDINANCE BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
AMENDING SECTIONS 26-1, 26-96 AND 26-98 OF THE
MONROE COUNTY CODE, FURTHER RESTRICTING
DIVING AND SNORKELING DURING LOBSTER MINI -
SEASON AND COMMERCIAL LOBSTER SEASON;
PROVIDING A DEFINITION FOR "COMMERCIAL
LOBSTER SEASON"; PROVIDING FOR SEVERABILITY;
PROVIDING FOR THE REPEAL OF ALL ORDINANCES
INCONSISTENT HEREWITH; PROVIDING FOR
INCORPORATION INTO THE MONROE COUNTY CODE
OF ORDINANCES; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners finds that the increased diver and boat
traffic in navigable canals, and within 300 feet of marinas, improved residential and commercial
shorelines before and during the two-day lobster mini -season and beginning with the start of the
commercial lobster season presents heightened public safety problems not generally applicable at
other times of the year; and
WHEREAS, the Board of County Commissioners finds and declares these public safety
problems to constitute a public nuisance, detrimental to the community as a whole, due to the
level of policing and emergency services required to respond to accidents and collisions that
occur because of the close proximity of divers and vessel traffic in small areas; and
WHEREAS, the Board of County Commissioners finds that the extended prohibition of
diving and snorkeling preceding lobster mini -season running through commercial lobster season
does not intrude upon the Florida Fish and Wildlife Conservation Commission's jurisdiction over
the harvesting of spiny lobster and in fact furthers the Commissioner's stated intent of protecting
and conserving Florida's spiny lobster resources;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION 1. Section 26-1, Monroe County Code is hereby amended to read as follows:
Sec. 26-1. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
1
MAYOR MURPHY
Combustion vessel exclusion zone means that no person shall operate a motorized
vessel (as defined in this section), by use of a combustion engine, or in some cases where
specifically established an electric motor, in any area spatially defined as "Combustion
Vessel Exclusion Zone" and that is so identified as a "Combustion Vessel Exclusion
Zone" by appropriate signage.
Commercial lobster season means the period of time designated for harvesting of
lobster, currently from August 6 through March 31 of the following year, authorized by
the Marine Fisheries Department of the Florida Fish and Wildlife Conservation
Commission pursuant to Section 68B-24.005, Florida Administrative Code as amended
from time to time.
Commercial vessel means:
(1) Any vessel primarily engaged in the taking or landing of saltwater fish or
saltwater products or freshwater fish or freshwater products, or any vessel
licensed pursuant to F.S. § 370.06 from which commercial quantities of saltwater
products are harvested, from within and without the waters of this state for sale
either to the consumer, retail dealer, or wholesale dealer; or
(2) Any other vessel, except a recreational vessel as defined in this section.
Discharge includes, but is not limited to, any spilling, leaking, pumping, pouring,
emitting, emptying or dumping.
Dive means to wholly or partially submerge one's body while equipped with a
mask or goggles, whether or not any type of underwater breathing apparatus is
used.
Floating structure means as defined in F.S. § 327.02.
Houseboat means as provided in F.S. § 337.02.
Idle speed/no wake means that a vessel cannot proceed at a speed greater than that
speed that is necessary to maintain steerage.
Live -aboard vessel:
(1) The term "live -aboard vessel" means as provided in F.S. § 327.02.
(2) Any vessel with a person living aboard and that is anchored, moored, or docked in
the same location for 72 consecutive hours is presumed to be a live -aboard vessel.
Lobster mini -season means the two-day sport season authorized by the state
pursuant to F.A.C. 68B-24.005.
MAYOR MURPHY
Manager means the manager and/or management staff of the land based facility
authorized by separate resolution and/or agreement to operate, manage and maintain any
county mooring field.
Manmade water body means a water body that was created by excavation by
mechanical means under human control and shall include a canal, cut basin, or channel
where its edges or margins have subsequently been modified by natural forces.
(1) For the purposes of this chapter, such water bodies may have natural
components, for instance a channel or canal may have been dredged such
that the dredge material was used to create land on one side, but not the
other, thus leaving a relatively natural shoreline on the opposite side.
(2) Also for the purposes of this chapter, the manmade water body must have
"buildings," as defined in part II of this Code, along its shoreline to be
applicable. If buildings are not present on a given shoreline on the date of
adoption of the ordinance from which this section is derived, but such
buildings are constructed at a later date, then the ordinance from which
this section is derived becomes effective at that time.
Marine sanitation device means as defined in F.S. § 327.02.
Mobile pump -out vessel means any vessel capable of pumping out and receiving
human body wastes and other effluent contained in marine sanitation devices installed
aboard other vessels.
Mooring field means areas in and adjacent to the County installed mooring
systems, including designated anchoring areas. These areas may include both County and
State owned submerged lands, but shall exclude privately owned submerged lands. The
delineation, implementation and management of County mooring fields shall be approved
by the state.
Motorboat means as provided in F.S. § 327.02. This definition is synonymous
with the definition of motorized vessel.
Motorized vessel means any vessel that is propelled or powered by machinery and
that is capable of being used as a means of transportation on water.
No discharge zone means any of the areas located within State waters within the
boundaries of the Florida Keys National Marine Sanctuary, as identified in Federal
Register Notice 66:144, pp 38967-38969, promulgated on July 26, 2001, and as shown
in attachment A of the ordinance from which this section is derived.
Owner means as provided in F.S. § 327.02.
Person means an individual, partnership, firm, corporation, association, or other
entity, but does not include an individual on board a public vessel or the owner of a
public vessel.
3
MAYOR MURPHY
Public vessel means a vessel owned or a bareboat chartered and operated by the
United States, the State, the County, or by a foreign nation, except when such vessel is in
commerce.
Pump -out station means a facility that pumps or receives human body wastes and
other effluent out of marine sanitation device installed on board vessels.
Real property owner means any part owner, tenant in common, tenant in
partnership, joint tenant or tenant by the entirety, with legal or beneficial title to the
whole or to part of real property.
Recreational vessel means any vessel:
(1) Manufactured and used primarily for noncommercial purposes; or
(2) Leased, rented, or chartered to a person for the person's noncommercial
use.
Residential area means any area designated improved subdivision, suburban
residential or suburban residential limited, sparsely settled, urban residential, and urban
residential mobile home under the County land development regulations.
Seaworthy condition means that a vessel is in good condition and capable of the
use for which it was designed.
Sewage means human body wastes and wastes from toilets and other receptacles,
including approved marine sanitation devices (MSD) intended to receive or retain body
wastes, whether treated or raw.
Slow speed/minimum wake means that a vessel must be fully off plane and
completely settled into the water. It must not proceed at a speed greater than that which is
reasonable and prudent to avoid the creation of an excessive wake or other hazardous
condition under the existing circumstances. A vessel is not proceeding at a slow
speed/minimum wake when it is:
(1) Operating on a plane;
(2) In the process of coming off plane and settling into the water or coming up
onto a plane; or
(3) Operating at a speed that creates a wake that is unreasonable or
unnecessarily endangers other vessels.
Speargun means any device whether commercially manufactured or hand -made,
that is designed and constructed so as to be capable of forcefully discharging at great
velocity any spear or any similar projectile in a direction determined by the user thereof
for a distance greater than two feet (24 inches) whether or not such spear or projectile is
tethered to the firing apparatus or otherwise limited in its range. No distinction shall be
4
MAYOR MURPHY
made as to the mechanical construction or physical means used in such devices to create
the potential energy necessary to eject or fire such spear or similar projectiles.
Vessel means as provided in F.S. § 327.02.
Water -borne craft or structures subject to density allocation and wastewater
management requirements (water -borne craft) means and encompasses any of the
following definitions, houseboat, floating structures, live aboard vessel, and vessel as
defined in this chapter and F.S. § 327.02 when the object of such definitions is being
occupied in a manner that would be construed as either a residential or business purpose
that would normally require wastewater facilities. Such occupation, be it residential or
commercial in nature, could involve either long-term or short-term tenancies and
typically would involve occupancy including habitation, eating, sleeping, bathing, and or
a business functions where the occupant were aboard the water -borne craft for several
hours per day.
(1) Water -borne craft may as a matter of course occupy a dry slip, wet slip, or
mooring as defined in this chapter and exist in a marina, marine facility,
mooring field or other location within or on waters of this state as defined
in this chapter.
(2) Water -borne craft are subject to a density allocation commensurate with
the district it occupies and is to be calculated as the equivalent of one
density unit. Water -borne craft are subject to wastewater management
requirements as defined in this section and part II of this Code.
SECTION 2. Sec. 26-96, Monroe County Code is hereby amended to read as follows:
Sec. 26-96. Intent and purpose.
The intent and purpose of this article is to abate the destruction of property, deleterious
environmental effects, and criminal trespass that results from the close proximity of divers to
public and private property, as well as from the interactions and explorations by divers of docks,
piers, and bulkheads in search of spiny lobster during the lobster mini -season and commercial
lobster season. Such activities constitute a public nuisance.
SECTION 3. Sec. 26-98, Monroe County Code is hereby amended to read as follows:
Sec. 26-98. Diving and snorkeling prohibited.
(a) It is a public nuisance and is unlawful for any person to dive or snorkel in any manmade
water body or marina, or within 300 feet of an improved residential or commercial
shoreline beginning three (3) days prior to the opening of and during the entirety of the
lobster mini -season and for the first five (5) days of commercial lobster season. Amap
r-efleefing the ens-ef- the prohibited a shall ,.e available at the
5
MAYOR MURPHY
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(b) Nothing in this article shall prohibit diving incidental to vessel or dock maintenance
provided the diver performing the maintenance lawfully displays a diver down flag and
otherwise complies with the requirements of F.S. ch. 327.
SECTION 4. SEVERABILITY. If any portion of this ordinance is for any reason held invalid
or declared to be unconstitutional, inoperative or void, such holding shall not affect the
remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to
be inapplicable to any person, property or circumstances, such holding shall not affect its
applicability to any other person, property or circumstances.
SECTION 5. CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of
ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict.
SECTION 6. INCLUSION IN CODE OF ORDINANCES. The provisions of this ordinance
shall be included and incorporated into the Code of Ordinances of the County of Monroe,
Florida, as an addition or amendment thereto, and shall be appropriately renumbered to conform
to the uniform numbering system of the Code.
SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect as provided in section
125.66(2), Florida Statutes.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the day of , 2010.
Mayor
Mayor Pro Tem
Commissioner
Commissioner
Commissioner
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
By.
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By,
Mayor/Chairperson
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