Gloucester Dive flag Ordinance - recap

There is an ordinance put forward in Gloucester by the Lobstermen Association that includes several limitations for divers. This ordinance has been on the books for several years, but was never enforced. This occurred shortly before the Bay State Council of Divers meeting on July 12, 2006.

Apparently, the ordinance has started to be enforced with citations, and basically states that divers (or their flag) shall stay 25 feet from a working boat, lobster buoy, or a lobster pot. Each diver is now required to  carry a dive flag--no longer a flag per group! See below for exact wording

In order to fight this, the Bay State Council has hired an attorney, and they feel that they have a very good case. Under Massachusetts state law a local by-law cannot frustrate the purpose of the state law. The town of Gloucester believes that if a town bylaw is stricter than state law then it does not "frustrate the purpose" of the state law.

The BSC went through this about 15 years ago with the town of Nahant which passed a bylaw much like Gloucester's. At that time local dive instructor Rusty Murray allowed herself to be arrested under the town bylaw. The Council hired Attorney E. Steven Cohen to defend Ms Murray and had the bylaw repealed. Attorney Cohen is co-author of PADI's book of law and diving.

Recently Dave Stillman contacted Attorney Cohen regarding the current Gloucester situation. Dave has heard from the Harbor Master, Assistant Harbor Master and City Solicitor of Gloucester who all believe that if the bylaw is stricter than the state law, than it is OK. Mr Cohen had this to say.

"This is not necessarily true. If a by-law conflicts with a state law, being stricter does not necessarily validate the by-law. It depends if the state statute is part of a comprehensive statutory scheme that preempts any state action (which was argued in the Nahant case) or if the by-law frustrates the purpose of the state law (which was argued in the Nahant case) In this case, the by-law is stricter but does not automatically mean the bylaw is valid."

"A by-law must be in conflict with a state law and must frustrate the purpose of the state law to be stricken. In this case, as in Nahant, the Gloucester by-law conflicts with state law and, frustrates the purpose of the state statute so I believe this is the same situation as Nahant"

Because of Mr. Cohen's previous experience with the Nahant case, the Council believes he is perfectly qualified to represent the diving community in this case. For his part Cohen has lowered his hourly rate, but estimates it would still cost between $3000 to $4500.

The Council itself does not have the funds to pay for it alone, and while they have raised some of the money, they are asking the dive clubs, shops and charter boats to contribute what they can.

"If we let the Gloucester bylaw sit than it's likely other coastal towns will follow with their own restrictive legislation making their defeat all the more costly." -Christopher C. Hugo, Board of Directors, Bay State Council of Divers.


Bay State Council 10/11/06 Meeting Minutes

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Bay State Council of Divers
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You can get the Code of Ordinances at
Sec. 10-81.  Scuba and skin diving.

(a)        Driver's flag. Scuba or skin divers within the Gloucester waterways shall display a diver's flag consisting of a white diagonal stripe on a red field not less than twelve by fifteen inches (12  X  15) in size. The flag shall be displayed upright on a float or similar device at a height sufficient to be seen by passing vessels. The diver shall trail this flag while submerged, unless the harbormaster grants permission to do otherwise, and shall surface within twenty-five (25) feet of the flag.(b)        Distance from buoys. The diver shall maintain a distance of at least twenty-five (25) feet and stay clear when vessels are hauling traps in the immediate area.(c)        Prohibition. The harbormaster may prohibit scuba or skin diving in areas within Gloucester waterways where such diving cannot, in the harbormaster's opinion, be carried out safely without undue inconvenience to vessel operations.(d)        Beach regulations. Scuba or skin divers must comply with beach regulations promulgated by the director of public works.

(Ord. No. 17-1993, 12-14-93)