The Amber May Law – Parasailing Accident Gulf Shores

FLORIDA’S PARASAILING SAFETY LAW: The Amber May Law

Leighton Panoff Law provides clients with extensive experience in the area of resort and vacation injuries (Resort Torts), including cruise ship, boating, water sports and violent crime/negligent premises security.

Among Mr. Leighton’s cases is the high-profile parasailing death in Pompano Beach, Florida, in which the mother of 15-year-old Amber May White brought a case against the parasailing operators and the resort where her daughter was killed.

Amber May died from head trauma and internal injuries while parasailing. She crashed into a building when the parasail on which she was riding snapped while it was high in the sky and in high winds.

Amber May’s sister Crystal also suffered head injuries in this tragedy. Mr. Leighton and Amber May’s mother Shannon Kraus have spearheaded legislative efforts to bring some regulation to this rogue industry.

After seven years his efforts in Tallahassee resulted in the first law in the country regulating the parasailing industry. Known as the White-Miskell Act (named for Amber May White and another parasailing victim), the law is the first attempt to mandate minimum safety requirements for parasailing.

VACATION TIP: Never get on a parasailing operation without checking the weather, determining that the operator holds a Coast Guard license for transport of passengers, maintains a minimum of $1 million in liability insurance, has a working VHF transceiver and a separate marine weather device providing National Weather Service updates, and maintains a log of all weather prior to taking passengers out.

Make sure that the operator is familiar with and complies with new Florida statute 327.375 (see below) governing commercial parasailing, also known as the White-Miskell Act.

The new law was borne from repeated catastrophes in Florida’s tourist-filled waters. Year after year visitors went home injured or in body bags when their parasailing adventure went wrong.

FLORIDA’S PARASAILING SAFETY LAW:

2014 PARASAILING REGULATION AS ENACTED INTO LAW IN FLORIDA

Chapter 2014-70

S.B. No. 320

An act relating to commercial and recreational water activities; providing a short title; amending s. 327.02, F.S.; defining terms; amending s. 327.37, F.S.; prohibiting certain commercial and recreational water activities within certain areas; creating s. 327.375, F.S.; requiring the operator of a vessel engaged in commercial parasailing to ensure that specified requirements are met; requiring the owner of a vessel engaged in commercial parasailing to obtain and maintain an insurance policy; providing minimum coverage requirements for the insurance policy; providing requirements for proof of insurance; specifying the insurance information that must be provided upon request; requiring the operator to have a current and valid license issued by the United States Coast Guard; prohibiting commercial parasailing unless certain equipment is present on the vessel and certain weather conditions are met; requiring that a weather log be maintained and made available for inspection; providing a criminal penalty; amending ss. 320.08, 327.391, 328.17, 342.07, 713.78, and 715.07, F.S.; conforming cross-references; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. This act may be cited as the “White-Miskell Act.”

Section 2. Section 327.02, Florida Statutes, is amended to read:

FL ST § 327.02

327.02. Definitions

As used in this chapter and in chapter 328, unless the context clearly requires a different meaning, the term:

(1) “Airboat” means a vessel that is primarily designed for use in shallow waters and powered by an internal combustion engine with an airplane-type propeller mounted above the stern and used to push air across a set of rudders.

(2) “Alien” means a person who is not a citizen of the United States.

(3) “Boating accident” means a collision, accident, or casualty involving a vessel in or upon, or entering into or exiting from, the water, including capsizing, collision with another vessel or object, sinking, personal injury, death, disappearance of a any person from on board under circumstances that which indicate the possibility of death or injury, or property damage to any vessel or dock.

(4) “Canoe” means a light, narrow vessel with curved sides and with both ends pointed. A canoe-like vessel with a transom may not be excluded from the definition of a canoe if the width of its transom is less than 45 percent of the width of its beam or it has been designated as a canoe by the United States Coast Guard.

(5) “Commercial parasailing” means providing or offering to provide, for consideration, any activity involving the towing of a person by a motorboat if:

(a) One or more persons are tethered to the towing vessel;

(b) The person or persons ascend above the water; and

(c) The person or persons remain suspended under a canopy, chute, or parasail above the water while the vessel is underway.

The term does not include ultralight glider towing conducted under rules of the Federal Aviation Administration governing ultralight vehicles as defined in 14 C.F.R. part 103.

(6) “Commercial vessel” means:

(a) A Any vessel primarily engaged in the taking or landing of saltwater fish or saltwater products or freshwater fish or freshwater products, or a any vessel licensed pursuant to s. 379.361 from which commercial quantities of saltwater products are harvested, from within and without the waters of this state for sale either to the consumer or to a, retail dealer, or wholesale dealer.

(b) Any other vessel, except a recreational vessel as defined in this section.

(7) “Commission” means the Fish and Wildlife Conservation Commission.

(8) “Dealer” means a any person authorized by the Department of Revenue to buy, sell, resell, or otherwise distribute vessels. Such person must shall have a valid sales tax certificate of registration issued by the Department of Revenue and a valid commercial or occupational license required by any county, municipality, or political subdivision of the state in which the person operates.

(9) “Division” means the Division of Law Enforcement of the Fish and Wildlife Conservation Commission.

(10) “Documented vessel” means a vessel for which a valid certificate of documentation is outstanding pursuant to 46 C.F.R. part 67.

(11) “Floating structure” means a floating entity, with or without accommodations built thereon, which is not primarily used as a means of transportation on water but which serves purposes or provides services typically associated with a structure or other improvement to real property. The term “floating structure” includes, but is not limited to, an each entity used as a residence, place of business or office with public access; a, hotel or motel; a, restaurant or lounge; a, clubhouse; a, meeting facility; a, storage or parking facility; or a, mining platform, dredge, dragline, or similar facility or entity represented as such. Floating structures are expressly excluded from the definition of the term “vessel” provided in this section. Incidental movement upon water or resting partially or entirely on the bottom does shall not, in and of itself, preclude an entity from classification as a floating structure.

(12) “Florida Intracoastal Waterway” means the Atlantic Intracoastal Waterway, the Georgia state line north of Fernandina to Miami; the Port Canaveral lock and canal to the Atlantic Intracoastal Waterway; the Atlantic Intracoastal Waterway, Miami to Key West; the Okeechobee Waterway, Stuart to Fort Myers; the St. Johns River, Jacksonville to Sanford; the Gulf Intracoastal Waterway, Anclote to Fort Myers; the Gulf Intracoastal Waterway, Carrabelle to Tampa Bay; Carrabelle to Anclote open bay section, (using the Gulf of Mexico); the Gulf Intracoastal Waterway, Carrabelle to the Alabama state line west of Pensacola; and the Apalachicola, Chattahoochee, and Flint Rivers in Florida.

(13) “Homemade vessel” means a any vessel built after October 31, 1972, for which a federal hull identification number is not required to be assigned by the manufacturer pursuant to federal law, or a any vessel constructed or assembled before prior to November 1, 1972, by an entity other than a licensed manufacturer for its his or her own use or the use of a specific person. A vessel assembled from a manufacturer’s kit or constructed from an unfinished manufactured hull is shall be considered to be a homemade vessel if such a vessel is not required to have a hull identification number assigned by the United States Coast Guard. A rebuilt or reconstructed vessel may not shall in no event be construed to be a homemade vessel.

(14) “Kite boarding” or “kite surfing” means an activity in which a kite board or surfboard is tethered to a kite so as to harness the power of the wind and propel the board across a body of water. For purposes of this subsection, the term “kite” has the same meaning as used in 14 C.F.R. part 101.

(15) “Houseboat” means a any vessel that which is used primarily as a residence for at least a minimum of 21 days during any 30-day period, in a county of this state if such, and this residential use of the vessel is to the preclusion of its the use of the vessel as a means of transportation.

(16) “Length” means the measurement from end to end over the deck parallel to the centerline, excluding sheer.

(17) “Lien” means a security interest that which is reserved or created by a written agreement recorded with the Department of Highway Safety and Motor Vehicles pursuant to s. 328.15 and that which secures payment or performance of an obligation and is generally valid against third parties.

(18) “Lienholder” means a person holding a security interest in a vessel, which interest is recorded with the Department of Highway Safety and Motor Vehicles pursuant to s. 328.15.

(19) “Live-aboard vessel” means:

(a) A Any vessel used solely as a residence and not for navigation;

(b) A Any vessel represented as a place of business or a professional or other commercial enterprise; or

(c) A Any vessel for which a declaration of domicile has been filed pursuant to s. 222.17.

A commercial fishing boat is expressly excluded from the term “live-aboard vessel.”

(20) “Livery vessel” means a any vessel leased, rented, or chartered to another for consideration.

(21) “Manufactured vessel” means a any vessel built after October 31, 1972, for which a federal hull identification number is required pursuant to federal law, or a any vessel constructed or assembled before prior to November 1, 1972, by a duly licensed manufacturer.

(22) “Marina” means a licensed commercial facility that which provides secured public moorings or dry storage for vessels on a leased basis. A commercial establishment authorized by a licensed vessel manufacturer as a dealership is shall be considered a marina for nonjudicial sale purposes.

(23) “Marine sanitation device” means any equipment, other than a toilet, for installation on board a vessel, which is designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage. Marine sanitation device Types I, II, and III shall be defined as provided in 33 C.F.R. part 159.

(24) “Marker” means a any channel mark or other aid to navigation, an information or regulatory mark, an isolated danger mark, a safe water mark, a special mark, an inland waters obstruction mark, or mooring buoy in, on, or over the waters of the state or the shores thereof, and includes, but is not limited to, a sign, beacon, buoy, or light.

(25) “Moored ballooning” means the operation of a moored balloon pursuant to 14 C.F.R. part 101.

(26) “Motorboat” means a any vessel equipped with machinery for propulsion, irrespective of whether the propulsion machinery is in actual operation.

(27) “Muffler” means an automotive-style sound-suppression device or system designed to effectively abate the sound of exhaust gases emitted from an internal combustion engine and prevent excessive sound when installed on such an engine.

(28) “Navigation rules” means, for vessels on:

(a) For vessels on Waters outside of established navigational lines of demarcation as specified in 33 C.F.R. part 80, the International Navigational Rules Act of 1977, 33 U.S.C. s. 1602, as amended, including the appendix and annexes thereto, through October 1, 2012.

(b) For vessels on All waters not outside of such established lines of demarcation, the Inland Navigational Rules Act of 1980, 33 C.F.R. parts 83-90, as amended, through October 1, 2012.

(29) “Nonresident” means a citizen of the United States who has not established residence in this state and has not continuously resided in this state for 1 year and in one county for the 6 months immediately preceding the initiation of a vessel titling or registration action.

(30) “Operate” means to be in charge of, or in command of, or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

(31) “Owner” means a person, other than a lienholder, having the property in or title to a vessel. The term includes a person entitled to the use or possession of a vessel subject to an interest in another person which is, reserved or created by agreement and securing payment of performance of an obligation., but The term does not include excludes a lessee under a lease not intended as security.

(32) “Person” means an individual, partnership, firm, corporation, association, or other entity.

(33) “Personal watercraft” means a vessel less than 16 feet in length which uses an inboard motor powering a water jet pump, as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than in the conventional manner of sitting or standing inside the vessel.

(34) “Portable toilet” means a device consisting of a lid, seat, containment vessel, and support structure which that is specifically designed to receive, retain, and discharge human waste and which that is capable of being removed from a vessel by hand.

(35) “Prohibited activity” means such activity that as will impede or disturb navigation or creates a safety hazard on waterways of this state.

(36) “Racing shell,” “rowing scull,” or “racing kayak” means a manually propelled vessel that which is recognized by national or international racing associations for use in competitive racing and in which all occupants, with the exception of a coxswain, if one is provided, row, scull, or paddle and that which is not designed to carry and does not carry any equipment not solely for competitive racing.

(37) “Recreational vessel” means a any vessel:

(a) Manufactured and used primarily for noncommercial purposes; or

(b) Leased, rented, or chartered to a person for his or her the person’s noncommercial use.

(38) “Registration” means a state operating license on a vessel which is issued with an identifying number, an annual certificate of registration, and a decal designating the year for which a registration fee is paid.

(39) “Resident” means a citizen of the United States who has established residence in this state and has continuously resided in this state for 1 year and in one county for the 6 months immediately preceding the initiation of a vessel titling or registration action.

(40) “Sailboat” means a any vessel whose sole source of propulsion is the wind.

(41) “Sustained wind speed” means a wind speed determined by averaging the observed wind speed rounded up to the nearest mile per hour over a 2-minute period.

(42) “Unclaimed vessel” means an any undocumented vessel, including its machinery, rigging, and accessories, which is in the physical possession of a any marina, garage, or repair shop for repairs, improvements, or other work with the knowledge of the vessel owner and for which the costs of such services have been unpaid for more than a period in excess of 90 days after from the date written notice of the completed work is given by the marina, garage, or repair shop to the vessel owner.

(43) “Vessel” is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

(44) “Waters of this state” means any navigable waters of the United States within the territorial limits of this state, and the marginal sea adjacent to this state and the high seas when navigated as a part of a journey or ride to or from the shore of this state, and all the inland lakes, rivers, and canals under the jurisdiction of this state.

Section 3. Subsection (5) of section 327.37, Florida Statutes, is amended, and subsection (6) is added to that section, to read:

FL ST § 327.37

327.37. Water skis, parasails, and aquaplanes, kite boarding, kite surfing, and moored ballooning regulated

(5) A person may not operate any vessel towing a parasail or engage in parasailing or moored ballooning within 100 feet of the marked channel of the Florida Intracoastal Waterway or within 2 miles of the boundary of any airport unless otherwise permitted under federal law.

(6) A person may not engage in kite boarding or kite surfing within an area that extends 1 mile in a direct line along the centerline of an airport runway and that has a width measuring one-half mile unless otherwise permitted under federal law.

Section 4. Section 327.375, Florida Statutes, is created to read:

FL ST § 327.375

327.375. Commercial parasailing

(1) The operator of a vessel engaged in commercial parasailing shall ensure that the provisions of this section and s. 327.37 are met.

(2) The owner or operator of a vessel engaged in commercial parasailing may not offer or provide for consideration any parasailing activity unless the owner or operator first obtains and maintains in full force and effect a liability insurance policy from an insurance carrier licensed in this state or approved by the Office of Insurance Regulation or an eligible surplus lines insurer. Such policy must provide bodily injury liability coverage in the amounts of at least $1 million per occurrence and $2 million annual aggregate. Proof of insurance must be available for inspection at the location where commercial parasailing is offered or provided for consideration, and each customer who requests such proof shall be provided with the insurance carrier’s name and address and the insurance policy number.

(3) The operator of a vessel engaged in commercial parasailing must have a current and valid license issued by the United States Coast Guard authorizing the operator to carry passengers for hire. The license must be appropriate for the number of passengers carried and the displacement of the vessel. The license must be carried on the vessel and be available for inspection while engaging in commercial parasailing activities.

(4) A vessel engaged in commercial parasailing must be equipped with a functional VHF marine transceiver and a separate electronic device capable of providing access to National Weather Service forecasts and current weather conditions.

(5)(a) Commercial parasailing is prohibited if the current observed wind conditions in the area of operation include a sustained wind speed of more than 20 miles per hour; if wind gusts are 15 miles per hour higher than the sustained wind speed; if the wind speed during gusts exceeds 25 miles per hour; if rain or heavy fog results in reduced visibility of less than 0.5 mile; or if a known lightning storm comes within 7 miles of the parasailing area.

(b) The operator of the vessel engaged in commercial parasailing shall use all available means to determine prevailing and forecasted weather conditions and record this information in a weather log each time passengers are to be taken out on the water. The weather log must be available for inspection at all times at the operator’s place of business.

(6) A person or operator who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Section 5. Paragraph (d) of subsection (5) of section 320.08, Florida Statutes, is amended to read:

<< FL ST  327.391 >>

327.391. Airboats regulated

(1) The exhaust of every internal combustion engine used on any airboat operated on the waters of this state shall be provided with an automotive-style factory muffler, underwater exhaust, or other manufactured device capable of adequately muffling the sound of the exhaust of the engine as described in s. 327.02(25) s. 327.02(24). The use of cutouts or flex pipe as the sole source of muffling is prohibited, except as provided in subsection (4). Any person who violates this subsection commits a noncriminal infraction punishable as provided in s. 327.73(1).

Section 11. This act shall take effect October 1, 2014.

Approved by the Governor June 13, 2014.

Filed in Office Secretary of State June 13, 2014.