36' Uniflite, the Pioneer I, Registration No. FL 7894 AH, In re, 80-88

• Decision Date: 01 April 1981
• Docket Number: No. 80-88,80-88
• Citation: 398 So.2d 457
• Parties: In re 36' UNIFLITE, the "PIONEER I", REGISTRATION NO. FL 7894 AH. Max GARCIA, Owner of the "Pioneer I", Appellant, v. STATE of Florida and PONCE INLET POLICE DEPARTMENT, Appellees.
• Court: Florida District Court of Appeals

Page 457

398 So.2d 457

In re 36' UNIFLITE, the "PIONEER I", REGISTRATION NO. FL 7894 AH.

Max GARCIA, Owner of the "Pioneer I", Appellant, v. STATE of Florida and PONCE INLET POLICE DEPARTMENT, Appellees.

No. 80-88.

District Court of Appeal of Florida, Fifth District.

April 1, 1981.

Rehearing Denied May 6, 1981.

Arthur M. Garel of Ezzo, Garel & Saylor, P.A., Miami, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellees.

FRANK D. UPCHURCH, Jr., J.

This is an appeal from an order of forfeiture of a boat. We reverse.

The issue is whether an owner of a boat that is used for illegal trafficking of drugs should have his boat forfeited even though he had no knowledge of the illegal activities, which were conducted without his consent and to which he was not privy. The forfeiture act is found in sections 943.41-943.44, Florida Statutes (1979), and we are most concerned with a portion of section 943.43 which appellant urges allows him to avoid forfeiture of his boat. We have underlined the "exception" portion of the statute to point out the legal issue in this case:

Forfeiture of vessel, motor vehicle, or aircraft; exceptions. Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44, unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States.

The stipulated facts are that appellant left his boat with a broker to either sell or rent it. At the time of the seizure the boat was rented to Gustavo Flores who had rented it ostensibly for a trip to the Bahamas and had apparently allowed another party to operate it. The boat was rented in Miami and seized in Ponce Inlet. The boat was seized laden with more than one hundred pounds of marijuana. The parties have agreed the boat was being used for illegal drug trafficking when it was seized. Appellant urged that he was an innocent party to the whole affair and his boat should not be taken from him. He was apparently in Spain at the time his agent, the broker, rented the boat to Flores and did not have any knowledge to whom or for what purpose the boat was rented. There is no evidence in the record that the appellant was involved in the particular illegal activities for which the boat was seized, although the state was understandably curious as to how a person whose only acknowledged income was $150.00 per week could afford such a vessel and his trips abroad. But all concede that for the purposes of this case, he stands as an innocent owner of the boat.

The Florida Uniform Contraband Transportation Act, sections 943.41-943.44, Florida Statutes (1979), was substantially patterned after similar federal legislation. ¹ Griffis v. State, 356 So.2d 297 (Fla.1978). The federal courts have held that the fact that the owner of the property was without knowledge of the illegal use and did not in any way consent to or approve of such use would not prevent confiscation. United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir.1977); United States v. One 1967 Cadillac Coupe ElDorado, 415 F.2d 647 (9th Cir.1969). The federal courts have even held that the holder of a security interest in a vehicle used for transportation of marijuana was not entitled to remission of the forfeiture because the holder of the security interest was innocent. General Finance Corp. of Fla. South v. United States, 333 F.2d 681 (5th Cir.1964). See also United States v. One (1) 1950 Burger Yacht, Fla. Reg. #FL5163BE, 395 F.Supp. 802 (S.D.Fla.1975).

The Florida Act, however, contains a material difference from the federal law. Section 943.44(1), Florida Statutes (1979), provides in part: "(T)he provisions of this section shall not apply to innocent parties or destroy any valid lien...." ² This language does not appear in the federal law. We conclude that the Florida Legislature by adding this language intended to exclude the harsh results of the federal law. The forfeiture provision is penal in nature and should be strictly construed. United States v. Campos-Serrano, 404 U. S. 293, 92 S.Ct. 471, 39 L.Ed.2d 457 (1971). See also McCaskill v. Union Naval Stores Co., 59 Fla. 571, 52 So. 961 (1910). This intent is emphasized by a clarification of section 943.43, Florida Statutes (Supp.1980), when it was amended in the 1980 session of ...