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Alachua County airboat ordinance ruled unconstitutional

BY JENNIFER CABRERA

Alachua County’s “Nighttime airboat curfew” ordinance was ruled unconstitutional by a county judge on December 20, 2019, in response to a motion by William Schaus to dismiss a citation he received on August 17, 2019, for operating an airboat on Orange Lake. 

The nighttime airboat curfew referendum was passed by 56.17% of Alachua County voters on November 2, 2010 and passed by the County Commission with a resolution on November 23, 2010. The ordinance states that “No person shall operate an airboat in Alachua County between 7:00 p.m. and 7:00 a.m” and carries fines of $250 for a first violation and $500 for subsequent violations. 

In 2009, the county requested a legal opinion from the Florida Attorney General on the constitutionality of such a statute. The response said that Florida law allows counties to pass ordinances restricting the use of airboats if passed by a two-thirds vote, but “In enacting any such ordinance, the county must balance its concern for the public health, safety, and welfare with constitutional considerations and a recognition that any such regulation must not be in violation of constitutional protections afforded to the public for the use of, and access to, state sovereignty lands.”

On July 9, 2019, the Alachua County Commission took steps to increase enforcement of the curfew, and the first three citations were issued in August. 

Schaus contested his citation on August 28, and then, on September 9, gave notice of a constitutional challenge and filed a motion to dismiss the citation based on an unconstitutional ordinance.

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The motion to dismiss was granted on December 20, and the ordinance was ruled unconstitutional by County Court Judge Kristine Van Vorst. Her order argued that people have a right to “have the free use of such waters and shores.” Echoing the legal opinion from 2009, Van Vorst wrote that “As the Defendant has presented sufficient evidence of a burden upon a fundamental right, the burden shifts to the County to establish both a compelling interest in the regulation and that the ordinance is narrowly tailored to meet the goals of the regulation” and “The Ordinance does not sufficiently balance the rights of the residents with those seeking
use of the Public Trust.”

Van Vorst also argued that section 327.65, Florida Statutes (“Muffling Devices”) gives local governments a specific ordinance that they can use to regulate noise pollution. Since “express, written purpose of the ordinance is to limit ‘excessive noise generated by airboats,’” she ruled that the ordinance was pre-empted by state law. 

She also wrote that “The Alachua County Nighttime Airboat Curfew Ordinance conflicts with the Florida Statute by effectively setting the permissible decibel level to zero (0) as opposed to 90 dB A as permitted by Florida Statute, for a substantial period of time.”

The order was stayed for 30 days to allow the parties a chance to appeal. 

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