FLOATING BUSINESSES: How Far Will It Go?

How many floating trampolines, inflatable castles, swim-to bars, swim-to pizzerias, jet-ski hives, parasail landings (etc.) can permanently anchor off our shores?  According to former City Commissioner George Halloran, “Looks like it could be as many as they want.”  Halloran wants businesses that place permanent structures offshore to be required to get approval from the local government prior to obtaining a bay bottom lease from the State.

“There is a provision for local approval in the law,” says Halloran, “but DEP is not asking the local community to have a say.”    According to Florida Statute 253.61, the Department of Environmental Protection (DEP) may not issue offshore bay bottom leases unless the activity has been approved by local governments situated within 3 miles of the leased area.

“Those floating McDonalds-type playgrounds are not just a Key West problem,” says Islamorada resident Charlie Causey, “It’s an issue that concerns all Florida Key’s residents, waterfront property owners, resort owners, tourists – anyone at all who enjoys the ocean.”

This issue has come up in large part as a result of a ground-breaking court order won by Fury Water Adventures last December.   Until then only owners of waterfront property (called Riparian owners) could apply for leases of baybottom and only for areas adjacent to the shore.  But Fury used a format unconnected to land ownership, created to allow offfshore oil exploration and aquaculture, to obtain a lease a mile off Key West for a jet-ski platform, an inflatable iceberg and a floating trampoline.

“Lesson learned,” says Halloran who sued to block Fury’s baybottom lease, “according to the Judge’s ruling, those things could pop up all over the marine sanctuary.”

This is not the first time Key West has wrestled with offshore businesses of this nature.  In the early 90’s there was a literal explosion of such businesses just off Smather’s Beach.

“Once one guy figured out he could make a buck by tapping into the tourists on the beach it turned into a free-for-all,” says Halloran.  “There were jet-ski barges and parasailing barges a few hundred feet from the beach advertising everything from fun to coca-cola.”  But, according to Halloran, as the number of barges grew, so did public disapproval.

In April of 1994, the City Commission tried to uproot those “pirate” businesses by pushing them out beyond the City’s 600-foot jurisdictional limit, but curiously the Mayor at the time, Dennis Wardlow, immediately sponsored a subsequent ordinance aimed at bringing the barges back to a 300-foot mark.  What Wardlow had not revealed to his fellow Commissioners was that he was being paid as a “consultant” for one of the most successful of those offshore jet-ski operations.  The FBI got involved.  There were a few arrests and even a trial.  The business owner, John Bigler, a well-known local attorney, pled guilty to reduced charges and gave up his license to practice law.  Wardlow was acquitted by a jury.  Ah, that was during the good ol’ days when Chief of Police Ray Peterson was fired, allegedly in retaliation for having been the one who called in the FBI.

As to the offshore “pirate businesses”, as they were called, the City obtained an extension of jurisdiction out to 800 feet in the Smather’s Beach area, called it a “Marine Park”, and with some help from the US Coast Guard, the area was declared a “no propeller” zone.   It was now too far to swim and with the prohibition against picking up passengers with a shuttle boat, every barge disappeared from in front of Smather’s Beach.

Today, with the security of a long-term bay bottom lease and access for large passenger vessels, offshore tourist-barge businesses have the potential to grow far beyond old Bigler’s and his Mayoral “consultant’s” wildest dreams.

Ironically, before it became a best friend, DEP was the worst enemy of offshore entertainment barges.   As a matter of fact, in 2009 DEP engaged in a crusade against those very businesses.  A few of them were anchored near Pearl Basin, just two miles west of Key West; another was in the Upper Keys near the 18-mile stretch.   They were cited for anchoring their floating business on State owned bay bottom.

But then, on a morning in November 2012, DEP personnel at the regional office in Tampa received an unusual order.  They were all to clear their workstations, pack-up, walk out of the building and go home.   The next day there was a list of who still had a job. Those on the list were allowed to come back in with their knickknacks; the others were fired and sent home.  (See this article by Public Employees For Environmental Responsibility (PEER))

Governor Scott had just unofficially extended his war against the agencies perceived as impeding the development of business.  It put the fear of God into thousands of bureaucrats who now knew that creating jobs at any cost was the new definition of protecting the environment and fighting pollution.

The Department of Community Affairs (DCA), both credited and blamed for limiting development in the Keys, had already been disbanded and replaced by the Department of Economic Opportunity (DEO).    The message was clear.

And in a small office in the Keys, DEP officer, Bruce Frank was ordered by his superiors in Tallahassee to change his assessment of the Fury’s floating business proposal from adverse to the environment to “clearly in the public interest.”

“This is not an attack on Fury businesses,” says Halloran.  “Fury has one of the more successful charter operations in Key West.  But their success is encouraging others to start similar commercial outposts.  We already have over 10 businesses renting jet skis in the area, with no end in sight.”

Halloran wants the City Commission to have a say concerning the impact of these businesses, not only on waste and parking, but on the environment.

The fact that charterboat businesses have begun to permanently anchor barges and “toys” in the nearshore waters may be a sign of a deeper problem:  the overstressed coral reef is in bad shape and doesn’t attract tourists the way it used to.

“People don’t want to snorkel on the reef as much as they used to,” Fury owner Scott Saunders told the Last Stand board of directors last year, “Reef tours are down, jet-ski tours are up.”

“Now that the reef is suffering from overuse,” says Halloran, “they are looking for other natural resources to tap into and the back country is next.”

It may be unrealistic to expect that businesses will self-regulate to protect the resources they depend on.  Tour operators have denied that dropping hundreds of tourists a day on the reef had anything to do with its decline.  Chances are they would use the same denial tactic regarding their impacts to the backcountry.

“This is an issue which concerns all Monroe County citizens,” says Causey, a strong advocate for maintaining Sanctuary water quality and habitat,  “Sanctuary waters cannot become flashy amusement parks.  The Key’s long-term economic future requires clean, healthy offshore habitat for our reef and fisheries and the divers, fishermen and tourists that support it.  Without that our economy’s future is bleak. We do not want our pristine waters industrialized.”

According to the “letter of the law” (Florida Statute 253.61), a baybottom lease will not be issued if it is within 3 miles of a municipality or an improved beach unless it has been approved by the local government.  This obviously gives some power to Monroe County and the municipalities including Key West over the expansion of floating amusement parks and floating jet-ski marinas; however, local governments have not exercised this power nor has it been recognized by DEP.