It’s unclear when Marco received OK to prosecute boat anchor restrictions

The City of Marco Island is continuing full steam ahead in prosecuting its restrictions on boat anchoring, but it is unclear when it received the formal authorization to do so.

Two weeks ago, the city filed a notice of appeal of Collier County Judge Rob Crown’s October decision to declare a city ordinance limiting anchoring in city waterways unconstitutional.

City Attorney Alan Gabriel and Council Chairman Mike Minozzi had planned to call a special closed council session to discuss the case before filing the notice of appeal, but Gabriel said a meeting was unnecessary. The city’s attorneys had already received direction from council to continue prosecuting, a move that would include filing a notice of appeal, Gabriel said.

“There’s no requirement that we get step-by-step authorization to proceed,” he said.

But when any formal authorization occurred is questionable.

Since the city’s attorney firm took over prosecution of the case this summer, council has held three closed attorney-client meetings and one public forum on the matter. Following one closed session in September, Dan Abbott, an attorney in Gabriel’s Fort Lauderdale-based firm Weiss Serota, announced the city planned to continue prosecuting, according to a videotape of the meeting.

Following a closed session that occurred after the city lost the case, Minozzi declared council had reached a consensus to appeal. During the public forum, the city heard opinions from 17 people on the case, but did not vote, according to council minutes.

That lack of formal action before announcing an intention to appeal has led some open government advocates to wonder whether the city has complied with the state’s Government in the Sunshine Laws on open meetings.

Barbara Petersen, president of the media-funded First Amendment Foundation, has pointed to a 1998 Florida 4th District Court of Appeal ruling where the City of Vero Beach was found to have violated the Sunshine Law for taking “decisive action” in a closed meeting.

There’s no clear legal standard when mere advice becomes “decisive action” in a closed meeting. Vero Beach councilors passed a motion behind closed doors, something that didn’t happen in Marco’s most recent closed session, councilors have said. Council did, however, reach a “consensus,” Minozzi said.

Marco Councilman Glenn Tucker, an attorney, said city staff received all the direction it needed from council when it passed the ordinance in May 2006.

“From that point forward, it is the job of the staff to enforce the ordinance unless otherwise directed by the council,” Tucker said. “The council has seen fit not to contradict that direction. That enforcement would include an appeal.”

To that end, Gabriel said he would ask council for a formal vote should it decide to direct his firm to stop prosecuting the case.

Minozzi, who referred to the city filing a notice of appeal as a “decision,” said the city has complied with the state’s open meetings laws.

“Everything we’ve done is strictly done within the bounds of Sunshine,” Minozzi said. “What we did was strictly under the advice of our attorney who is well versed in the Sunshine Laws.”

According to the court file, the city has yet to submit its argument for an appeal, which would be heard in Collier County Circuit Court.

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

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Comments » 10

bbyrone46 writes:

So what Councilman Tucker is saying is that; to not take action, may be considered an action in the affirmative? Is that like a hearing impaired suspect's lack of response to a policeman's questions, may be considered a positive response to the commission of a crime? Good grief, lawyers. Also, if this is the way this council chooses to function then why do they keep reviewing and approving new sewer districts? Didn't they give direction to the City Staff two years ago? Shouldn't the City Staff be expected to just run with it, hell with the cost. Why does the Counsel even meet? When is leadership exercised? Mr. Tucker, you clearly are one that avoids individual responsiblity, why do you even bother attending City Council Meetings for that matter?

happy6 writes:

tucker is a moron...a successful atty would be someplece else rather than here....recker is his guy...another atty....please help us and spare us from a PI atty who makes his living suing people...maybe he would sue QE...but then...the city would pay the bill for QE.

happy6 writes:

DON'T ANCHOR NEAR MY ISLAND....and spend money here...or tell anyone what a wonderful place it is to drop anchor! go to Phoenix with your boat on a trailer....just forget we are an island.

chris3 writes:

Is Mr.Tucker and the rest of the village idiots blind to what is in the Marco River across from the Snook Inn.....because they were allowed to anchor in our waterways, we now have a eyesore to our island, just what I want to look at everytime I go out in my boat...granted, we are a boating community, NOT A DUMPING GROUND FOR SOME BOATERS JUNK!!!

15yearsmarco writes:

Chris3, I think that boat is in Isle of Capri waters, not Marco's

chris3 writes:

Doesn't matter, you can see it from Marco, I see it every time I go out on my boat and no matter how you look at it, either from the Isle of Capri or Marco, it is still an EYESORE ....and I am sure the house on the tip of the Isle of Capri that overlooks the river just loves looking at the sailboat.

15yearsmarco writes:

I agree it is an eyesore but Marco's laws would not apply there so boater would be free to park boats on that side of the river for as long as they like.

chris3 writes:

I understand that part, but the whole point is, if we let boaters anchor in Marco's waterways for more than a few days, then what has happened in the river with the sinking of that sailboat, in theory, could happen in Marco. And I don't object to a few days of anchoring, I just don't want boaters thinking they can just leave their boats for as long as they like and basically forget about it and let it possibly sink, and if it does sink,like the sailboat, the owner doesn't take the responsibility of removing the boat,we as residents and boaters, end up looking at it every time we go boating. Then it spoils it for the rest of the responsible boaters, and I guess that is my whole point. I am afraid that there will be more abandoned boats in our waterways because of irresponsible boaters and ruining our boating.

artrules writes:

There are laws already on the books that address derelict and abandoned boats. This Marco ordinance will not change those laws or make a difference if someone decides to abandon their boat.

strike3 writes:

I like that sunken sail boat there. I hope it stays there a long time. There is another south of key wadin. I hope some more sink in the area. Ever notice it's always the sail boaters? They can't be the sharpest tools on the water.

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