After months of delay, the case of the Marco man charged with violating the city’s oft-contentious boat anchoring ordinance is set for an Oct. 12 day in court.
Barring any additional setbacks, that is.
Defendant Dave Dumas said he hopes the hearing to dismiss the case goes forward as planned, particularly since the path to the courthouse has not followed a smooth course in the case’s eight-month history.
A previous hearing on Aug. 14 for the defense’s motion to dismiss the case was dominated by wrangling over what the hearing’s actual purpose was.
City attorneys arrived prepared to discuss a separate motion to change counsel, while defense attorney Donald Day arranged for all of his witnesses to be present.
Only one witness took the stand, and District Court Judge Rob Crown deferred his decision on the change of attorney until after the hearing.
With the change granted, a new hearing date was set for Oct. 12, with a pretrial hearing of Oct. 3.
Photo by Ed Bania
Eagle staff
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 earlier hearing will establish a full trial date, plus it will serve as a status check, said Dan Abbott, the city’s attorney from the Fort Lauderdale-based firm of Weiss Serota.
“As I understand it’s just to make sure this thing isn’t falling through the cracks,” Abbott said.
Abbott took over prosecution of the case when state attorneys discovered July 6 that the city had failed to sign a contract agreeing to compensate the state attorney general’s office for legal services. The revelation came to light just days before prosecutors were due to file a response to the defense motion.
In the interim since the August hearing, Abbott has filed a response to the defense motion.
The response and the original motion are both cut and dried in their presentations, with the defense arguing that the anchoring ordinance is unconstitutional, and the prosecution countering that it is within the bounds of “local governmental power.”
The ordinance, which was passed in May 2006, limits vessels to three days in the island’s waterways without proof that the vessel has been pumped out, and prohibits anchoring within 300 feet of shoreline or man-made structures.
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Dumas’s defense maintains that the ordinance is in direct conflict with Florida Statute 327.60, which prohibits regulation of non-live-aboard vessels in navigation outside a mooring field or area of jurisdiction.
However, the statute does state that local governments can enact such laws in reference to “floating structures or live-aboard vessels” within local jurisdiction or an established mooring field. Marco island has no such mooring field.
Dumas said the delays, while frustrating, have helped elevate the profile of the case.
“If there’s been any net effect, it’s that there’s been a little more enlightenment in the community,” Dumas said.
Supporters of Dumas have, in the past, said the city’s policies on anchoring create an inhospitable atmosphere for boaters.
Dumas said his defiance of the ordinance, which has been described as an act of civil disobedience, is simply about reversing a decision that he believes is harmful to the whole city.
“I view this as a discriminatory practice against visitors,” Dumas said. “It’s bad for business, it’s bad for visitors, and Marco Island spends a lot of time drawing visitors to this island. What are we doing putting up stop signs in front of some visitors? It doesn’t make any sense, economic or otherwise, to keep them from coming here.”
City Council will hold an executive session with attorneys Monday to discuss the case behind closed doors, as provided by attorney-client privilege.
Dumas supporter Herman Diebler has speculated as to whether the city is preparing to drop the case.
In the interest of closure, Dumas hopes not.
“That would be the worst thing in the world for us, that it would go to court and it would never be heard,” Dumas said. “Then it would just be dangling out there.”
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