Boaters to challenge Waterways Ordinance today

Weather permitting, the 42-foot Krogen motor yacht Kinship will anchor this afternoon, probably in Smokehouse Bay, to challenge the Marco Island Waterways and Boating Safety Ordinance.

Marco Island residents Lee Oldershaw, left, and Dave Dumas, skipper of the 
'Kinship,' said Friday that they will pilot the vessel today to challenge the 
city's Waterways and Boating Safety Ordinance.

Photo by Ed Bania, Eagle staff

Marco Island residents Lee Oldershaw, left, and Dave Dumas, skipper of the "Kinship," said Friday that they will pilot the vessel today to challenge the city's Waterways and Boating Safety Ordinance.

Marco Island residents and experienced sailors Dave Dumas, skipper of the Kinship, and Capt. Lee Oldershaw, said Friday they will pilot the vessel and anchor within 300 feet of the shoreline and wait to be approached by a Marco Island Police Department marine officer.

“We expect this to have statewide impact,” Oldershaw said. “After our success, we will remind everyone of the statements of officials as to the legality of this ordinance when it was being deliberated.”

If the city issues a citation to Dumas for violating the ordinance, Oldershaw said that Naples attorney Donald Day is prepared to file a declaratory judgment against the city.

Oldershaw added that boating organizations and officials will lobby newly elected Florida Attorney General Bill McCullen to issue an opinion on the ordinance.

Oldershaw stated in the Dec. 15 issue of the Marco Eagle that a vessel would violate the ordinance in the near future. He sent an e-mail to Marco Island Police Chief Roger Reinke about the plan. Reinke responded, stating that “the police department will enforce the provisions of this ordinance as we do other city ordinances and state laws.”

The ordinance was adopted by the Marco Island City Council on May 1 after residents and members of the Marco Waterway Organization complained about a derelict vessel in the Marco River and boats anchoring close to waterfront homes.

The ordinance states that a vessel cannot anchor more than three days in the island’s waterways without proof that the boat has been pumped out. It also states that a vessel cannot anchor within 300 feet of a shoreline or man-made structure.

Oldershaw, island resident Herman Diebler and other boaters on the island have said that the ordinance violates the amendments that were passed by the Florida Legislature this summer and signed into law by former Gov. Jeb Bush.

Florida Statute 327.60 states that 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 statute prohibits local governments from regulating the anchoring of non-live-aboard vessels in navigation outside of such mooring fields.

The city of Marco Island doesn’t have permitted or marked mooring fields.

Boating groups, including the Sailing Association of Marco Island and the local and statewide Standing Watch organizations, have threatened to take the city to court if a boater is cited for violating the ordinance.

“Our state board of directors will support a challenge of these regulations of local waterways wherever we can in Florida,” said Jim Kalvin, president of the Florida’s Standing Watch board of directors.

He added that Standing Watch and its thousands of members have always supported enforcement of existing laws before new regulations are developed. When members disagree with a law, they use the legislative and judicial systems to challenge or amend it.

“This, it appears, is what our members are doing in Marco Island,” Kalvin said. “And this, we will support.”

Diebler said that at least one MIPD marine officer has harassed visiting boaters regarding the ordinance.

Boaters visiting Marco Island have written letters to the Eagle and other publications, including Southwinds boating magazine, claiming that they were harassed by a Marco Island marine officer.

In the January, 2007 issue of Southwinds, editor Steve Morrell said that Gulfport and Marco Island are now known throughout the state as “anti-boater.”

Jill and Leo Stanley of Cape Coral, owners of the Sturdy Begger, sent a letter to Southwinds and the National Marine Manufacturers Association. The Stanleys claimed their vessel and five others that sailed from the Cape Coral Sailing Club on Nov. 14 and anchored in Factory Bay were harassed by a Marco Island officer.

Dumas has been boating for 35 years. He has cruised all of the Great Lakes, and from Marco Island to Long Island Sound and the Yucatan Peninsula in Mexico.

“It is such a joy to enter a port or harbor where they encourage the boating traffic and they are friendly and nice to you,” he said Friday. “It is such a joy to be in that atmosphere and that’s what I want my city, Marco Island, to be. I want my city to be a friendly destination for visitors.”

Brian McMahon, president of the Collier County chapter of Standing Watch, said that it was just a question of time before someone challenged the ordinance.

“The issue is larger than just Marco,” McMahon said. “If every municipality along the coast of Florida has a different set of laws, boaters would have to submit a float plan to their lawyers just to see if it were legal.”

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

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Comments » 4

Lolala writes:

This City finds itself in court alot. Isn't there anybody in our City that is tired of all the negative exposure it gets. I'm sure our elected officials must be tired of being the butt of jokes throughout Florida. All this negative exposure can't be doing our City Manager's career any good either. Recall in Lakeland, STRP equity issues in Tallahassee and now national exposure over our Council's most recent attempt to expand their jurisdiction. Hopefully, the voters of Marco Island will take their responsibilities more seriously in the future.

blondie writes:

At Naple's City Council workshop the Naples city lawyer recommended Naples not enact an anchoring ordinance since it is prohibited by state statutes. The state reserves the right to regulate vessels in navigation specifically prohibiting the muncipality from doing so. He said if Naples enact such an ordinance it would not stand a challenge in court.
Why does Marco's City Council think it is above the law. Again.

captnjimbo writes:

The proposal the police put forward gave them the tool they needed to intervene when a boater wore out their welcome. There was no law before, and frankly there was no problem. When the poice made the proposal a group that never even thought about it before, politicized the issue and shoved it to the council. In my opinion the council should have shelved it, but they did not and now we go to court. Another example of issues created by a bunch of hyperactive, selfish, aggrandized amatuers creating another distraction for our police, our city managers and our council.

freedomlover writes:

I am just stunned!! Safety? Let me tell you about safety...
In March of last year, I was sailing from Key West to Port Charlotte when I encountered a storm off of Marco Island. I sustained substantial damage to my 34" Ketch rigged sailboat and was forced to come in from offshore. As I required unforseen repairs to my boat, I could not afford to pay for a slip and so I anchored almost in the exact spot Dave Dumas anchored his vessel Kinship. Due to weather and repair time, I had NO CHOICE except to stay anchored for 8 days. This was before the new ordinance so I did not experience any harassment from law officials. I wonder, though, what would have happenned if this had happened after the ordinance was in effect. Would I have been forced to leave and continue my trip in an unsafe boat?

This ordinance is NOT about safety. It is about elitists restricting the freedom of all boaters (particularly those who are not wealthy) from access to PUBLIC waterways. (presumably to keep out the "riff raff") There are lawful means to remove derelict vessels or other hazards to navigation already in place. Just because my boat is not new and shiny doesn't mean that I am not ENTITLED to access to PUBLIC waterways.

I am grateful to Dave for going out on the limb for everyones right to access THEIR waterways and wish him luck. Thanks Dave!!!

I urge the City of Marco Island to rescind this ridiculous (and unconstitutional) ordinance.

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