§200-49  Disposition of derelict vessel. (a)  The chairperson may cause a derelict vessel to be immediately taken intocustody.  Upon taking custody of a derelict vessel, the department, as soon asreasonably possible shall:

(1)  Give public notice of intended disposition andprocedure for requesting an administrative hearing;

(2)  When possible, post a notice of intendeddisposition and procedure for requesting an administrative hearing on thevessel; and

(3)  Serve a duplicate original of the notice of intendeddisposition and procedure for requesting an administrative hearing by certifiedmail, return receipt requested on:

(A)  The registered or documented owner of thevessel, if known, at the owner's last known address on record with thedepartment or the United States Coast Guard;

(B)  All lien holders who have properly filed afinancing statement, referencing the name of the registered or documentedowner, in the bureau of conveyances or who are shown on the records of thedepartment or the United States Coast Guard; and

(C)  Any operator of the vessel on record withthe department or the United States Coast Guard.

(b)  The owner, lien holder, or operator of thevessel shall have ten days after the date of the public notice or receipt ofthe mailed notice, whichever occurs later, to request in writing anadministrative hearing.  This administrative hearing is solely for the purposeof allowing the owner, lien holder, or operator of an impounded vessel tocontest the basis given by the department for the impoundment of the vessel. The hearing must be held within five working days of the department's receiptof the written request.

(c)  If the vessel is not repossessed withintwenty days after the date of the public notice or mailing of the notice, whicheveroccurs later, the vessel may be disposed of by negotiated sale except that,when two or more purchasers indicate an interest in purchasing the vessel, thevessel will be sold at public auction to the highest bidder, unless the vesselis exempt from public auction under section 200-45.  If no purchaser expressesa desire to purchase the vessel, the vessel may be destroyed or donated to anygovernmental agency. [L 1991, c 272, pt of §2; am L 1998, c 2, §55; am L 2004,c 70, §6]

 

Case Notes

 

  A vessel and its accompanying mooring and live-aboard permitsare constitutionally protected "property", of which an individual maynot be deprived without notice and an opportunity to be heard.  91 H. 1, 979P.2d 586.

  State had no statutory basis upon which to charge fees forthe impoundment and disposal of vessel under §200-44 or this section wherevessel had not been repossessed and State had engaged in the negotiated sale ofthe vessel for a purchase price of $0.00.  91 H. 1, 979 P.2d 586.

  Where an owner's right to a hearing subsequent to impoundmentof a derelict vessel was not clearly established under §200-48, this section,or other law at the time of state boating officers' actions, it was notunreasonable for officers to have believed it was lawful to dispose of vesselwithout a hearing; thus officers, in individual capacities, entitled toqualified immunity in 42 U.S.C. §1983 action.  91 H. 1, 979 P.2d 586.