Ron asked: A cyclist picks up an empty (hence, open) beer can or bottle for whatever reason, and sticks it in a rear jersey pocket.  Would this constitute a violation of Florida’s open container Law?

Answer

The definition in the statute is self-explanatory.  The intent is obviously to prohibit drivers from consuming alcoholic beverages while driving.

s. 316.1936 - Possession of Open Containers of Alcoholic Beverages in Vehicles Prohibited; Penalties

(1) As used in this section, the term:

(a)  “Open container” means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.

I ride a beach cruiser, very slowly. Can’t ride against traffic. I have a trust issue with fast cars driving behind me.  I feel more secure If I can see what’s coming.

Answer

Riding against the flow of traffic is unlawful and unsafe. Please see:

http://flbikelaw.org/2011/05/which-side-of-the-road/

Ron asked:  Does a cyclist give up any rights by riding on the paved shoulder while obeying all statutes?  Is the driver of a motor vehicle any less culpable if he or she veers off the road, hitting and killing a cyclist riding there?

If the FHP lists “charges pending the outcome of the investigation,” how can a non-involved individual learn the outcome, and if charges are ever filed?

Answer

Culpability would necessarily be determined by all of the factors associated with an incident.  The following are some of those.

Cyclists have the same rights and duties as other drivers.

s. 316.2065 – Bicycle Regulations

(1) Every person propelling a vehicle by human power has all of the rights and all of the duties applicable to the driver of any other vehicle under this chapter, except as to special regulations in this chapter, and except as to provisions of this chapter which by their nature can have no application.

Drivers are required to obey all traffic regulations.  There is no statute or any special regulation in s. 316.2065 that either requires a cyclist to use a paved shoulder if it is not marked as a bicycle lane, or prevents the cyclist from doing so.  Lacking that, riding a bicycle on a paved shoulder is lawful.  The rights and duties of the cyclist are not restricted when using a paved shoulder, if the cyclist is otherwise riding legally.

Note that the statute above does not specify whether or not a cyclist is in the roadway.  The paved shoulder is not part of the roadway as defined in the statutes.

s. 316.003 – Definitions

(42) Roadway – That portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.

Drivers passing other vehicles have the responsibility to overtake and pass safely.

s. 316.085 – Limitations on Overtaking, Passing, Changing Lanes and Changing Course

(2) No vehicle shall be driven from a direct course in any lane on any highway until the driver has determined …. that the move can be completely made with safety ….

Drivers overtaking and passing bicyclists have the additional requirement to pass no less than three feet from the cyclist.  The statute does not limit that requirement to cyclists in the roadway.

s. 316.083 – Overtaking and Passing a Vehicle

(1) …. The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

Clearly, the driver of a motor vehicle that leaves the roadway and strikes a bicyclist that is lawfully riding on a paved shoulder has violated those statutes.

Records of traffic incidents are a matter of public record and can be obtained at the appropriate department.  They may be redacted to remove personal information.  They may also be held for some period of time during an investigation.

To obtain information or the status of a particular case, I suggest contacting the FHP to determine the best way to proceed.  You can contact the FHP at this email address:  www.flhsmv.gov

Robin asked:  What are the Florida laws concerning using your bike at a drive through at banks and fast food places?  I went through the drive through at BOA yesterday and they served me as surprised as they were, but I was just wondering nonetheless.

Answer

There is no statute that directly addresses that.  Such establishments are private property, and even if available for public use, the owners can establish policies they deem appropriate.  Some businesses have precluded bicyclists from using drive-through windows.  I do not know of the reasons and if someone is confronted with such a policy, I recommend asking the management to change it.

Louann asked:  I have an electric bike that is 600 watts with pedals.  I have no license and no registration for it. There is no VIN number.  Are the Daytona Police correct in saying I need to have a license and registration?

Answer

Your electric bicycle appears meet the Florida statutory definition of “bicycle”.

s. 316.003 – Definitions

(2) Bicycle – Every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels.

Local authorities can regulate certain conditions related to bicycles.  Please see the following link for information about licensing and registration.

http://flbikelaw.org/2010/02/bicycle-licenses/

There is other information about motorized bicycles at these links:

http://flbikelaw.org/2010/01/mopeds/

http://flbikelaw.org/2010/05/motorized-bicycles-2/

http://flbikelaw.org/2010/06/motorized-bicycles-3/

http://flbikelaw.org/2010/06/motorized-bicycles-4/

I recommend taking this information to your local police department and asking them about Daytona’s requirements.

Jill asked:  As an adult, am I required to wear a helmet while riding my bicycle?  Our traffic rules are the same as we observe on the roads and highways.  However, there is less traffic and a more relaxed attitude.  People ride bicycles in the street and on the walking paths.

Answer

We recommend that everyone wear helmets when cycling, but helmets are required only for children under 16 years of age.

FS 316.2065 – Bicycle Regulations

(d)  A bicycle rider or passenger who is under 16 years of age must wear a bicycle helmet that is properly fitted and is fastened securely upon the passenger’s head by a strap, and that meets the standards of the American National Standards Institute (ANSI Z 90.4 Bicycle Helmet Standards), the standards of the Snell Memorial Foundation (1984 Standard for Protective Headgear for Use in Bicycling), or any other nationally recognized standards for bicycle helmets adopted by the department. As used in this subsection, the term “passenger” includes a child who is riding in a trailer or semitrailer attached to a bicycle.

As a part of the Bicycle Law Enforcement Program, we want to propose a uniform response throughout the state.  We appreciate your ideas about an effective response to these incidents to propose to law enforcement and the cycling community.

The video below was taken by Keri Caffrey, the web designer and graphics artist for this program.  She knows the laws and safe cycling practices.  As you watch the video, also note the number of vehicles, including other trucks, which pass without incident (normal and safe passing is demonstrated in the second half of the video).

There is also an article on the CommuteOrlando website that addresses the issue of how to report and seek justice in cases of harassment and intimidation: Fighting Back Against Roadway Terrorists.

Unfortunately, many bicyclists feel that reports of these incidents to law enforcement do not receive serious attention.  My experience is that the feelings are justified.

That is not always the case.  I am aware of an incident in which two cyclists reported that they were intentionally threatened twice by the aggressive language and actions of a motorist.   The department, which is represented in the Officer Advisory Panel, responded and fully investigated the incident, filing charges against the motorist.  I don’t know the details of the charges or the results.

That is not typical though.

Recently, there have been a number of these situations in one area, one that is always among the highest in state and national bicycle and pedestrian casualties.  These have been widely reported and identify Florida as the deadliest state.  These are some that have recently been reported in that area:

1.  A cyclist riding in a bike lane was verbally harassed, and the driver looped back around and struck him with a thrown bottle. He called the police and an officer came out and took a report. The officer didn’t take the bottle to fingerprint it.

2.  Another cyclist, also riding in a bike lane, was passed and then the motorist returned and threatened the cyclist with a handgun.  The police were called and the response was that since an officer didn’t witness the incident, there was nothing they could do.

3.  In a third incident, a driver went out of his way to intentionally attempt to hit a cyclist with a trailer then went around the block to make his apparently normal turn to his destination.  The cyclist followed him and confronted him.  The driver was indignant and said the cyclist should be on the sidewalk.  The cyclist called the non-emergency number for the police department but was told there was nothing they could do since an officer didn’t witness the incident.

Cyclists have the distinct belief that these incidents are not perceived by law enforcement as worthy of a response, and with each case the perpetrators are emboldened.  That is likely not the case with the prosecuted case above.

The following seem to me to be possible violations shown in the video.  Keep in mind that these are presented by a cyclist who has been on the receiving end of similar situations.  We need a law enforcement view of these situations and your opinion of actual violations that are in evidence in the video and the other cases above, and how we can incorporate them in the program.

FS 316.083 - Overtaking and Passing a Vehicle

(1) The driver of a vehicle overtaking another vehicle … shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

FS 316.085 - Limitations on Overtaking, Passing, Changing Lanes and Changing Course

(2) No vehicle shall be driven from a direct course in any lane on any highway until the driver has determined that …. the move can be completely made with safety and without interfering with the safe operation of any vehicle approaching from the same direction.

FS 316.089 – Driving on Roadways Laned for Traffic

(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

(3) Official traffic control devices (Bicycle Lanes) may be erected directing specified traffic to use a designated lane …. drivers of vehicles shall obey the directions of every such device.

(4) Official traffic control devices may be installed prohibiting the changing of lanes on sections of roadway, and drivers of vehicles shall obey the directions of every such device.

FS 316.130 – Pedestrian

(15)  …. every driver of a vehicle shall exercise due care to avoid colliding with any …. person propelling a human-powered vehicle ….

FS 316.185 - Special Hazards

…. speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance …. and the duty of all persons to use due care.

FS 316.074 - Obedience to and Required Traffic Control Devices

(1) The driver of any vehicle shall obey the instructions of any official traffic control device ….

FS 316.155 - When Signal Required

(1) No person may turn a vehicle from a direct course or move right or left upon a highway unless and until such movement can be made with reasonable safety, and then only after giving an appropriate signal in the manner hereinafter provided, in the event any other vehicle may be affected by the movement.

FS 316.192 - Reckless Driving

(1)(a) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

FS 316.1923 - Aggressive Careless Driving

“Aggressive careless driving” means committing two or more of the following acts simultaneously or in succession:

(2) Unsafely or improperly changing lanes as defined in s. 316.085.

(3) Following another vehicle too closely as defined in s. 316.0895(1).

(5) Improperly passing as defined in s. 316.083, s. 316.084, or s. 316.085.

(6) Violating traffic control and signal devices as defined in ss. 316.074 and 316.075.

FS 316.1925 - Careless Driving

(1) Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, …. so as not to endanger the life, limb, or property of any person.

FS 316.271 - Horns and Warning Devices

(3) The driver of a motor vehicle shall, when reasonably necessary to ensure safe operation, give audible warning with his or her horn, but shall not otherwise use such horn when upon a highway.

FS 784.05 - Culpable Negligence

(1) Whoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second degree

FS 784.011 - Assault

(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

There may be others, and you may know reasons the above are not viable options.

Some states have laws about vulnerable users, menacing and harassment.  Florida does not.

Most cyclists use the roadways without adverse consequences, and when riding legally and in accordance with safe cycling practices, are very safe.  Most motorists are respectful of the rights of others and operate safely and cooperate to insure the best use of the roads for all.  The violations above do occur, and they are committed by a small part of the population.  Those who do intentionally endanger others are few, and most likely repeat their actions numerous times.  They are a threat to civilized roadway use.

For the Bicycle Law Enforcement Program, we would also appreciate the involvement of your legal advisors to devise an effective and uniform approach that we can propose to the law enforcement community and cyclists statewide.

We also need to know what cyclists, either individually or as a group, through FBA or the clubs for example, can do to assist law enforcement.

Your assistance is very much appreciated.

David asked:  Do Florida Statutes address motorized wheelchairs or scooters used by the elderly and disabled?

Answer

When this question was first posed, I asked the FHP and received this response:

My inquiry to the Florida Highway Patrol at FHP@flhsmv.gov elicited this response:

Thank you for your inquiry.  Being that Florida Statute is not clear on this issue, I have requested a Legal Opinion from our Department on this issue.  We will let you know when the decision has been made.

Sgt. Jesse Evans

Since then, HB 971 amended the applicable statute as follows:

s. 316.1995 - Driving Upon Sidewalk or Bicycle Path

(1) No person shall drive any vehicle other than by human power upon a bicycle path, sidewalk ….

(3) This section does not apply to motorized wheelchairs.

Although I have not been able to confirm it, I believe the change was made due to the initiative of the FHP in response to our discussion.

PURPOSE:

1.  Enhance Officers’ Knowledge of the Laws About Bicycling

2.  Assist Agencies with Bicycling Education and Enforcement Operations

The program was initiated by a request from the Law Enforcement Planning Council of Palm Beach County.  We expect to begin Beta testing soon on the first topics, and complete the program in 2011.

The full program will consist of:

1.  Training Modules (2010)

• Five 5-10 minute web-based modules with video and narrative, web-based component, and pre-training and post-training questions and answers.
• Each module will be on DVD for training use.

2.  Officer Course (2010-11)

• Two-hour interactive web-based training using the first five modules.  The complete program will incorporate approximately 20 modules.
• Video, narrative, pre and post-training questions, with final exam.

3.  Training Officer Course (2011?)

• Full-day course for training officers to become in-house experts
• Instructor based detailed explanation of each module.

Law enforcement agencies are assisting in the development of the program:

• An Officer Advisory Panel consisting of officers around the state to provide advice and critique materials.
• Selected agencies will Beta-test materials to insure the needs of law enforcement departments are met.

All materials will be available to law enforcement agencies and the bicycling community.   Future potential uses include driver training, government officials, and others.