A motion to dismiss the case of Marco Island resident David Dumas is scheduled to be filed today in Collier County Circuit Court. The experienced boater was cited Jan. 19 for violating a regulation of the controversial Marco Island Waterways and Boating Safety Ordinance.
Noted criminal defense attorney Donald P. Day of Berry, Day and McFee and Assistant State Attorney Susan Storter are scheduled to meet in a private conference with Judge Rob Crown.
Day, who is defending Dumas free of charge, will also file a motion to declare the ordinance unconstitutional on seven different grounds.
The ordinance was passed by the Marco Island City Council on May 1, 2006. Dumas, skipper of the motor yacht Kinship, and Capt. Lee Oldershaw told the Marco Eagle in January they would challenge one of the ordinance’s regulations. The law states a vessel cannot anchor for more than 12 hours within 300 feet of a shoreline or man-made structure.
Dumas anchored in Smokehouse Bay on Jan. 18 within 300 feet of The Esplanade. He was cited by a Marco Island Police Department marine officer the next day and issued a Notice To Appear in Collier County Court on Feb. 15. A judge set a March 23 trial date. The proceeding was continued.
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Another regulation of the ordinance is that a vessel cannot anchor more than three days in the island’s waterways without proof that the boat has been pumped out.
Several state and national boating and marine groups, including the 675,000-member BoatU.S. (Boat Owners Association of the United States), the National Marine Manufacturer’s Association and Florida Chapter of Standing Watch, are watching the Dumas case closely. The groups claim the two regulations are in conflict of Florida Statute 327.60 that prohibits local governments from regulating the anchoring of non-live-aboard vessels in navigation outside of mooring fields owned by the municipality.
The statute also states local governments can enact and enforce regulations that prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdiction, or any vessels within marked boundaries of a mooring field, provided in state Statute 327.40.
The city of Marco Island doesn’t own or operate a permitted or marked mooring field.
The trial could take a whole day. The date will need to be scheduled around the availability of Crown, both attorneys and witnesses. Day’s list of witnesses will likely include an unnamed state official and Clayborn Young, publisher of cruising guides headquartered in North Carolina.
Dumas, Oldershaw and fellow residents Karl Henning and Herman Diebler met with Day on Monday. The attorney advised the group of his progress.
“This is going to be a very broad assault on this ordinance and not just relying on the state statute,” Oldershaw said. “We believe the city is going to raise the issues of home rule. Day will attack that also.”
Marco Island City Manager Bill Moss said the city has the responsibility to enforce the laws adopted by the city council.
“State statutes and constitutional obligations override any local or municipal ordinance,” Day said. “The Florida Constitution actually protects the citizens of the state of Florida and all waterways up to the high tide mark.”
He added that the controlling of those waterways is vested solely with the state and not local municipalities. Municipalities have some authority over public waterways only because the state legislature created a statute that gave them the authority provided that they follow the mandates of the statutes.
Oldershaw said Tuesday that Henning would present a letter to city officials requesting public information documenting any boating health, safety and welfare problems before the ordinance. Oldershaw and other boaters said no problems existed before the ordinance was adopted.