Florida/Georgia Personal Injury & Workers Compensation

...We grant the motion, withdraw our previous opinion, and substitute the following: Richard Krebs petitions for certiorari review of the circuit court's dismissal of his appeal from the county court. We grant the writ. Combs v. State, 436 So.2d 93 (Fla. 1983). Krebs was convicted in the county court of violating section 327.33(3)(a), Florida Statutes, governing navigation on waterways....

...Addison J. Meyers, Anderson, Moss, Parks & Russo, P.A. and G. Richard Strafer, Quinon & Strafer, P.A., for appellee. Before LEVY, GERSTEN and GODERICH, JJ. PER CURIAM. The state appeals from an order granting the defendant's motion to dismiss and finding section 327.33(3)(a), Florida Statutes (1989) unconstitutional. We reverse. The defendant, Sheldon Gruen, was charged in an amended information with two counts of violation of the navigation rules resulting in a boating accident, as proscribed by section 327.33(3)(a). Count I alleged that the defendant operated a vessel without maintaining a look-out. Count II alleged that the defendant improperly conducted a vessel in restricted visibility. The defendant filed a motion to dismiss the information alleging that section 327.33(3)(a) is unconstitutional because it is vague and lacks a mens rea requirement. The trial court found the statute unconstitutional for failing to include a mens rea requirement and granted the defendant's motion to dismiss. The state appeals. The state contends that the trial court erred in declaring section 327.33(3)(a) unconstitutional due to the absence of an element of criminal intent....

...But crimes proscribing conduct not prohibited at common law or crimes "mala prohibita", which usually result from neglect, do not require any criminal intent. Id. In the instant case, the defendant is charged with violating the duties of care imposed by the legislature in enacting section 327.33....

...Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910) (held statute did not deny due process of law, but may be justified as a valid exercise of police power). The statute in the instant case is distinguishable from the ordinance struck down in Lambert. Section 327.33(3)(a) does not punish mere presence, or a wholly passive conduct, or an activity totally unrelated to its goal of avoiding boating accidents. Rather, section 327.33(3)(a) regulates conduct in the course of operating a vessel; it proscribes the failure to act under circumstances that should alert the operator of the vessel to the consequences of his or her deeds. See Lambert, 355 U.S. at 228, 78 S.Ct. at 243, 2 L.Ed.2d at 231. Section 327.33 is designed to protect the public health, safety and welfare [2] of vessel operators and other persons using Florida's waterways; it is not "a law enforcement technique designed for the convenience of law enforcement agencies." See Lambert, 355 U.S....

...bstance. See Zeigler v. State, 198 So. 3d 1005 (Fla. 1st DCA 2016). This instruction was adopted in 2018. - 20 -  28.19 RECKLESS [OPERATION OF A VESSEL] [MANIPULATION] § 327.33(1), Fla....

...- 21 -  § 327.02(32), Fla. Stat. “Person” means an individual, partnership, firm, corporation, association, or other entity. Give if applicable and insert additional instructions from § 327.331, Fla. Stat....

...necessary to maintain headway and steerageway. A violation of this law constitutes Reckless Operation of a Vessel. Lesser Included Offense RECKLESS [OPERATION OF A VESSEL] [MANIPULATION] — 327.33(1) CATEGORY ONE CATEGORY FLA....

...Statutes (1991), rather than criminal sanctions. The state relies heavily on State v. Gruen, 586 So.2d 1280 (Fla. 3d DCA 1991), review denied, 593 So.2d 1051 (Fla.1991), to arrive at the opposite conclusion. Gruen addresses the constitutionality of section 327.33(3)(a), Florida Statutes (1989)....

...The conduct proscribed does not relate to negligent operation of a vessel; it relates to the operation of a vessel in violation of the navigational rules, and the reason for the violation is irrelevant. It is noteworthy that the term “careless,” i.e. “negligent,” appears in only section 327.33(2) where the “careless operation” of a vessel is made a noncriminal violation....

...t. The Florida Legislature provided no definition of the word "vessel" in the "Definitions" section of Chapter 68C-22. See generally Rule 68C-22.002, Fla. Admin. Code (2005). In subsections (5), (6), (7), and (18), Rule 68C-22.002 makes reference to § 327.33 of the Florida Statutes. Section 327.33 governs the "[r]eckless or careless operation of a vessel" and it is a subsection of the chapter in the Florida Statutes known as the "Florida Vessel Safety Law." See § 327.01 Fla....

...the operation and equipment of vessels so long as the regulations are not in conflict with the statute. Section 327.22(1), Florida Statutes, permits a county or municipality to adopt ordinances providing for enforcement of noncriminal violations of section 327.33 , Florida Statutes, relating to the careless operation of a vessel which results in the endangering or damaging of property, by citation mailed to the registered owner of the vessel....

...with culpable negligence resulting in serious personal injury in violation of section 784.05(2), Florida Statutes (2003), and with failing to comply with Navigation Rule 5, 33 U.S.C. § 2005 , resulting in a boating *189 accident, which is a second-degree misdemeanor under section 327.33(3)(a), Florida Statutes (2003). The trial court found J.S.G. not guilty of culpable negligence, but guilty under section 327.33(3)(a). In this appeal, J.S.G. challenges the sufficiency of the evidence to support the trial court’s determination of guilt. Section 327.33(3) provides that “[e]ach person operating a vessel upon the waters of this state shall comply with the navigation rules.” The navigation rules are defined in section 327.02(23), Florida Statutes (2003), as the Inland Navigational Rules Act of 1980, 33 U.S.C., §§ 2001 et seq., as amended, for boating activity not regulated by the International Navigational Rules Act of 1977. Section 327.33(3)(a) provides that a “person whose violation of the navigation rules results in a boating accident ......

...J.S.G. first argues that the State did not prove a violation of Rule 5 because that rule only applies to ship collisions and, further, because it does not apply to pleasure craft. These contentions are refuted by the plain language of the statute. Section 327.33(3) provides that each person operating a “vessel” shall comply with the navigation rules....

...fails to appreciate is that the navigation rules are operational rules. Although their purpose may be to prevent ship collisions, they nevertheless constitute the “rules of the road” for vessels, just as traffic regulations govern the conduct of motor vehicles on land. Section 327.33(3) mandates that boaters comply with the “rules of the road” when traveling on the waters of this state....