Motion filed to declare waterways ordinance unconstitutional

The 20th Judicial Circuit Court in Naples has been asked to declare the Marco Island Waterways and Boating Safety Ordinance unconstitutional.

The controversial ordinance has attracted national attention. The pending decision in the case is being viewed as precedent-setting in marine law by local, state and national boating organizations. Judge Rob Crown has been assigned the case.

The Marco Island City Council adopted ordinance 06-05 on May 1, 2006.

The ordinance states that a vessel cannot anchor within 300 feet of any shoreline, seawall, bridge, dock or man-made structure for longer than 12 consecutive hours.

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.

Marco Island residents and experienced boaters David Dumas and Lee Oldershaw told the Marco Eagle in January they would challenge one of the ordinance’s regulations.

The two men anchored Dumas’ vessel Kinship in Smokehouse Bay on Jan. 17 within 300 feet of The Esplanade. Dumas was cited the next day by a marine officer of the Marco Island Police Department for violating the 300-foot regulation.

Dumas’ attorney, Donald P. Day of Berry, Day McFee and Martin, filed motions on Monday with the court to dismiss the case and declare the ordinance unconstitutional.

Day states in the motion to dismiss that the Legislature understood that protecting the public’s waterways was the responsibility of the state, which held the waterways “in trust” for the citizens. He refers to Florida Chapter 327 that the Legislature adopted in June of last year. The statute became law on July 1, 2006.

The statute states, “Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions or of any vessels within the marked boundaries of mooring fields permitted as provided in S. 327.40. However, local governmental authorities are prohibited from regulating the anchoring outside of such mooring fields of non-live-aboard vessels in navigation.”

David Dumas anchored his vessel Kinship in Smokehouse Bay on Jan. 17 within 300 feet of the Esplanade. He was cited by a Marco Island Police Department marine officer the next day for violating the city's controversial Waterways and Boating Safety Ordinance.

Photo by Ed Bania, Eagle staff // Buy this photo

David Dumas anchored his vessel Kinship in Smokehouse Bay on Jan. 17 within 300 feet of the Esplanade. He was cited by a Marco Island Police Department marine officer the next day for violating the city's controversial Waterways and Boating Safety Ordinance.

The city of Marco Island doesn’t own or operate a permitted or marked mooring field.

The statute and the Marco Island ordinance both define a live-aboard vessel as any vessel used solely as a residence or represented as a place of business, a professional or other commercial enterprise, or a legal residence.

Day states that the preamble of the ordinance states the city has the full authority to regulate and control all waterways, bays, canals and inlets inside the boundaries of the city.

The motion also states the Kinship was anchored on a public waterway outside of any designated mooring area. Day adds the Kinship was in navigation and is not a live-aboard vessel.

“Therefore, Marco Ordinance 06-05 cannot apply to the defendant,” Day states. “Further, statute section 327.60 (2) specifically prohibits the city from enacting and regulating anchoring for non-live-aboard vessels in navigation.”

Day states 10 reasons in his second motion why the ordinance should be declared unconstitutional.

He says the city’s ordinance violated the Commerce Clause found within the United States and Florida’s Constitution. Day states the ordinance “significantly restricts the public’s right to use navigable waters in violation of the Navigational Servitude Doctrine.”

The ordinance is facially unconstitutional, according to Day, because it discriminates against citizens who do not have a local phone contact number. He states the ordinance requires a boater who leaves his vessel while it is anchored to place a contact person’s information on board.

The motion states the ordinance provides for local regulation of publicly owned sovereign waterways and violates the Florida Constitution and state statutes.

Day claims the ordinance is “overbroad.”

He adds it violates Florida Statute 327.60 in restricting non-live-aboard vessels in navigation from anchoring outside mooring fields.

The city’s ordinance also violates the Coastal Zone Management Act, according to Day.

The motion states the ordinance was “created in violation of the police powers rights granted to local municipalities pursuant to the Florida Constitution.”

Day claims the ordinance also violates Article 8 Section 2 of the State Constitution.

He states Marco Island officials claim the “home rule” provision allows the city to bypass the public’s right under the Constitution and all federal law for publicly owned sovereign waterways.

“The United States Constitution, Federal Law and Florida’s Constitution, statues and 100 years of judicial precedent prohibits local municipalities from passing laws regulating or controlling sovereign waterways,” the motion states.

Day states the city cannot enforce the ordinance because proper signage doesn’t exist.

Marco Island City Manager Bill Moss has said the city has the responsibility to enforce the laws adopted by the city council.

Finally, Day claims Florida Statute 327.60(2) is unconstitutional. He states the federal government, through the Rivers and Harbor Act, granted jurisdiction to states to regulate vessel navigation in public waterways.

“That authority has not been granted to local municipalities,” the motion states. “The Florida Legislature’s decision to grant to local municipalities authority to regulate vessel navigation is without authority and in violation of the Rivers and Harbor Act and the U.S. Constitution.”

Day added Statute 327.60(2) also violates the Florida Constitution because the state has assigned away legislative authority over sovereign waterways in violation of the 1859 state case of Geiger v. Filler and Florida’s Sovereignty Land Act.

Day’s office said a “status check” to update the case is scheduled for June 7 in Crown’s courtroom.

© 2007 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 5

businessguymarco writes:

As I have said before, this ordinance is one of the major reasons why business has been down this year on Marco. Our sales have decreased but probably not as much as it has over at Marco River Marina, Cedar Bay, Isles of Capri and others. I hope the councilors read Ed Bania's report.

strike3 writes:

This is just the first of many retarded things this council will try to do. The county was not so bad?

dkall writes:

You're right! I'm not planning on visiting Marco by boat or by car, simply because of the cities choice to BULLY boaters.

Bobegg writes:

My wife and I are full time liveaboard boaters. Out boat is our home. We travel all of the southeast coast from the Florida Keys to the Carolinas. This year we had planned to travel up the west coast of Florida. We changed our plans and will not visit the west coast of Florida this year and will not be stopping in Marco and will not be spending any money in your town. Your local marinas and business will not benefit from our visit. Instead we will travel up the east coast and spend our money in boater friendly communities. I hope you all enjoy the boatless views.

Flsail writes:

I am not a full time cruiser, or liveaboard, but I do have a sailboat and love that I live in Florida where there are many beautiful places to visit for short cruises from my home port of St Pete. When will municipalities learn that most boaters have disposable income that they want to spend, and if it is a nice area to visit we may move there or buy a second home! Make us welcome with dinghy docs, pump out boats and other ammeneties and the city will be rewarded. The coconut telegraph is a powerful form of mass media!

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