[HISTORY: Adopted by the Town Council of the Town of Bar
Harbor 6-18-2024 by Ord. No. 2024-06. Amendments noted where applicable.]
The purpose of this Chapter is to govern the disembarkation of Persons to docks or land within the Town from cruise ships and implement the purpose and intent of § 125-77H of the Town Code, as well as the promotion of the health, safety, and general welfare of the present and future inhabitants of the Town in a manner that serves to balance the interests of the general public and those of individual property owners.
Under federal, state and local law, the Town has regulatory
authority over disembarkation of Persons into the Town. This Chapter
is adopted pursuant to the Town's home rule powers as provided
for in Article VIII, Part Second, of the Maine Constitution, 30-A
M.R.S. §§ 2101 et seq.
If any section, subsection, clause, or phrase of this Chapter
shall be found to be invalid or unconstitutional, such invalidity
shall not affect the remaining provisions of this Chapter, and to
that end the provisions of this Chapter are hereby declared severable.
The provisions of this Chapter shall be administered jointly
by the Code Enforcement Officer and Harbor Master or their respective
designee(s).
Except as otherwise provided by this Chapter, language used herein shall be construed as set forth in § 125-108 of the Town Code and specific words and phrases shall have the meanings set forth in § 125-109 of the Town Code.
As used in this Chapter, the following terms shall have the
following meanings:
"Cruise ship" has the same meaning as set forth in § 153-22B of the Town of Bar Harbor Code.
A public or private property, or a public or private structure,
used for disembarkation of persons arriving on land from cruise ships.
An individual, corporation, governmental agency, municipality,
trust, estate, partnership, association, two or more individuals having
a joint or common interest, or other legal entity that owns, operates,
or otherwise is authorized to represent the CDSF.
The arrival of persons to docks and/or land within the Town
from cruise ships by tender vessels, or otherwise.
For purposes of this Chapter and the enforcement of § 125-77H, "Persons" means passengers of cruise ships and not those persons covered by 33 C.F.R. § 105.200 and 33 C.F.R. § 105.237 (titled "System for seafarers' access"), namely, "vessel personnel," "vessel crew," "seafarers assigned to a vessel," "pilots," and "representatives of seafarers' welfare and labor organizations" (collectively, "Crew"). The word "person" (i.e. not capitalized) shall have the meaning provided by § 125-108 of the Town Code.
A.
Permit Required: No person may allow or facilitate the disembarkation
of Persons from a cruise ship over land or operate a CSDF without
having first obtained a permit to operate a CSDF ("CSDF Permit").
B.
Cruise Ship Reservation Required: No CSDF or person shall receive
disembarking Persons from a cruise ship that has not first received
confirmation from the Harbor Master for a booked reservation for anchorage
pursuant to the Town of Bar Harbor Cruise Ship Standard Operating
Procedures, as they may be amended.
C.
Disembarkation Application and Permit Required:
(1)
Application Required. A CSDF Owner shall submit an application to
the Code Enforcement Officer, or designee, for a Disembarkation Permit
to allow on a specified calendar day a specified number of Persons
not exceeding 1,000 to disembark from one or more cruise ship(s) with
a confirmed reservation for anchorage.
(2)
Application Review. Applications shall be reviewed acted upon in
the order in which they were received within 30 days of receipt. The
application must identify the specific site of disembarkation, the
calendar day of disembarkation, and the requested number of Persons
to be disembarked to the identified CSDF and site of disembarkation
on that calendar day.
(3)
Issuance of Permit. Upon confirming the applicant has satisfied all other application criteria and requirements of this Chapter, the Code Enforcement Officer, or designee, shall grant the application and issue a Disembarkation Permit for the maximum number of Persons that does not cause the Daily Disembarkation Limit established by § 52-6C(4) of this Chapter to be exceeded.
(4)
Daily Disembarkation Limit. The Code Enforcement Officer, or designee,
shall not issue a Disembarkation Permit that would authorize the disembarkation
of more than 1,000 Persons, in the aggregate, on a single calendar
day, regardless of the total number of Disembarkation Permits requested
or issued for a specific calendar day.
A.
Counting Method. CSDF Owners shall employ a means to electronically
count each individual person that disembarks at a given CSDF ("Counting
Method"). The Counting Method must include a means for discounting
from the total count of individuals all crew. The Counting Method
shall be approved by the Harbor Master, or their respective designee,
and subject to annual review.
B.
Daily Certification. For each Disembarkation Permit, the CSDF Owner
shall submit a certification to the Code Enforcement Officer specifying
how many Persons were in fact disembarked on the calendar day specified
on the Disembarkation Permit and from what cruise ship said Persons
disembarked.
C.
Code Enforcement Officer Access. Consistent with 30-A M.R.S. § 4452(1)(A),
the Code Enforcement Officer, or designee, shall be permitted to access
the site(s) of the CSDF at which Persons disembark, at any time during
normal business hours, or at any time Persons are disembarking or
embarking, for the purposes of ensuring and verifying that Persons
are being counted properly. The CSDF shall not obstruct or otherwise
interfere with said access. Whether access is necessary is within
the sole discretion of the Code Enforcement Officer and Harbor Master.
If access is denied, the Code Enforcement Officer may apply for an
administrative search warrant pursuant to Maine Rule of Civil Procedure
80E.
D.
Code Enforcement Officer Audit. Upon request to the CSDF Owner, the Code Enforcement Officer, and their respective designee(s), shall have unobstructed and immediate access to the records and instruments used to implement the CSDF Counting Method for the purposes of auditing the CSDF Counting Method for accuracy and functionality and implementing and enforcing this Chapter and § 125-77H of the Town Code. Whether an audit is necessary is within the sole discretion of the Code Enforcement Officer. The CSDF Owner shall retain all records generated by the CSDF Counting Method for 3 years.
A.
Violation Report. If the Code Enforcement Officer, or designee, determines
that the terms of this Chapter have been violated, including without
limitation if a CSDF has disembarked Persons without a Disembarkation
Permit or disembarked more Persons than authorized per this Chapter
and any applicable Disembarkation Permit, the Code Enforcement Officer
within a reasonable time of the alleged violation, shall create a
Violation Report. The violation report should include the date and
time of the incident giving rise to the violation, the tender dock
where the violation occurred, who witnessed the violation, the number
of Persons who disembarked over the Disembarkation Permit limit, and
any other pertinent information as determined relevant by the Code
Enforcement Officer.
B.
Penalties and Enforcement. This Chapter shall be enforced by the Code Enforcement Officer in accordance with §§ 125-100 and 125-101 of the Town Code. CSDF Owners, individuals, firms, associations, corporations, partnerships, trusts or other legal entities found to be in violation of this Chapter may be subject to such fines, penalties, actions, and orders as are authorized by 30-A M.R.S. § 4452, as the same may be amended, provided that each disembarking Person exceeding the Disembarkation Permit is a distinct and separate violation under 30-A M.R.S. § 4452(3)(B), resulting in a minimum $100 penalty per excess unauthorized Person.
