Clash Over Floating Home Reaches U.S. Supreme Court

By CURT ANDERSON | March 27, 2012

Court documents refer to it as “that certain unnamed gray, two-story vessel approximately 57 feet in length.” To Fane Lozman, it was a floating Florida home never intended to sail the seas. Now, a long-running dispute over exactly what the structure was has landed before the U.S. Supreme Court.

Lozman, a 50-year-old former Chicago financial trader, seemingly lost his nearly six-year battle with the seaside city of Riviera Beach when his home was hauled away in 2009 and later destroyed by court order. But Lozman refused to give up, claiming officials vindictively and illegally targeted him for eviction from the city’s marina because of his vocal opposition to a major redevelopment plan.

“Whatever they had to do to get me out of there, they were going to do it,” Lozman said. “All I want to do is live a quiet life. I didn’t look for this drama, it came to me because I wanted to stay at the marina.”

The only-in-Florida backstory matters less to the Supreme Court than a more fundamental question: When is something a vessel, and when is it not? The court agreed to take the case earlier this year and is expected to hear arguments in October.

The vessel definition is crucially important to not only people who live on the water but also to major commercial businesses such as floating casinos, hotels and restaurants, said Stanford University law professor Jeffrey Fisher. The outcome will determine whether federal maritime or state laws apply to structures that are moored, more or less permanently, in one place.

“Federal maritime law is very different often than state law because it’s crafted for the specific dangers and concerns of maritime commerce and navigation at sea,” said Fisher, an experienced Supreme Court litigator who is handling Lozman’s appeal. “Here you have a question of federal law that has divided courts across the country. It’s very significant.”

For example, owners of floating homes usually must pay property taxes, while those owning vessels under maritime law do not. Coast Guard regulations require certain levels of crew for vessels. The standards differ on what kinds and amounts of damages can be awarded in personal injury lawsuits. There are different rules aboard vessels for employment disputes and compensation for workers injured on the job.

Owners of vessels and floating structures across the U.S. are closely watching the case so they know which set of laws to follow.

“The most overarching concern in maritime law on the planet is uniformity,” said David Weill, a maritime attorney in Long Beach, Calif., who isn’t involved in Lozman’s case. “It’s extremely important that shipping interests have uniform treatment as they go from port to port.”

Two federal appeals courts have ruled the owner’s intent is key to determining whether a structure is a vessel. In Lozman’s case, however, the 11th U.S. Circuit Court of Appeals held that what mattered most was if a structure was “practically capable of transportation over water,” which closely tracks the language in federal law that dates to the 1870s.

Riviera Beach officials declined comment because of the pending legal case. But in documents urging the Supreme Court not to take the case, they insisted the structure was not similar to a land-based home that would be afforded important state law protections against seizure.

Yet Lozman’s home had no engines, no bilge pumps, no steering mechanism, no lights or navigation aids. It had to be towed wherever it went. It had no Florida vessel registration number. All it did was float.

“It was a very unseaworthy craft,” Lozman said, adding the appeal of living there was the immediate access to his speedboats and other pleasure watercraft.

Yet a Florida federal judge and the 11th Circuit judges determined the structure was, in fact, a vessel, in part because it had been towed several times to different marinas across hundreds of miles.

Lozman’s story began when he picked the marina in Riviera Beach, one of South Florida’s poorest coastal cities, as the place for his floating home. Not only did it give him easy access to his speedboats and pleasure craft, but it was governed by the same state laws as homes on land.

Then Lozman learned Riviera Beach was planning a $2.4 billion private redevelopment project for the marina. The plan included the use of its eminent domain powers to take many local businesses and homes for a project geared toward wealthy yacht owners. On May 10, 2006, the city council held a hastily-called private meeting to designate the project’s master developer – one day before then-Gov. Jeb Bush signed a law prohibiting use of eminent domain authority for such non-public projects.

Lozman decided to challenge that decision in state court, arguing the meeting violated state open-government laws. That’s when the trouble began.

Lozman claims he was followed and harassed, his truck tampered with and damaged. He started showing up at city council meetings, where he got thrown out regularly and was even arrested a couple of times. He became a fixture on local TV newscasts. The local politicians considered him a nuisance; other people saw him as a crusader.

Then the city served an eviction notice, contending that Lozman’s 10-pound dachshund, Lady, was a dangerous dog and that he used unlicensed repair workers at his home. The city argued at the time that he was on a month-to-month lease that could be terminated under state landlord-tenant law.

No mention of the structure as a vessel – yet.

Lozman fought the eviction in court and won, with a jury finding in March 2007 that the eviction amounted to retaliation. Meanwhile, the marina redevelopment plan was shelved, only to be replaced by a scaled-down version that didn’t include use of eminent domain powers. Lozman fought that plan, too.

The city then decided to change the rules at the marina, telling Lozman in 2009 his right to stay there would be revoked unless he got the structure registered as a vessel and proved it could be moved when a hurricane or tropical storm threatened. The city also demanded payment of more than $3,000 in dockage fees. When Lozman refused to pay or leave the marina, the city went to federal court and for the first time sought to use U.S. maritime law to impose a lien on the structure as a vessel, not a house.

Fisher said this maneuver was a game-changer and set the dispute on its course to the Supreme Court. The floating home would have been protected from seizure under state law. But a judge sided with the city, so the structure was seized then bought by Riviera Beach for $1,400 and ultimately destroyed.

So, Lozman can never get his floating home back. He’s now living in Miami Beach and is no longer battling the latest marina redevelopment plan. But he won’t give up the legal dispute over his home, and he made enough money in the financial markets to take the case to the highest court in the land.

“When someone punches you in the face, you either fight back or you run and hide,” he said. “I’m going to fight back.”

The case is Fane Lozman v. The City of Riviera Beach, Florida. No. 11-626.

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