Boater cited for violating waterways ordinance

State and national groups considering class action suit against city

The first shot has been fired in a battle between local boaters and the city of Marco Island.

Marco Island marine police cited Marco boater Dave Dumas around 7:30 a.m. Thursday for violating a city ordinance restricting boat anchoring. Dumas intentionally violated the ordinance because he said it conflicts with state statutes on navigation. He plans to fight the citation in court.

Submitted photo

Marco Island marine police cited Marco boater Dave Dumas around 7:30 a.m. Thursday for violating a city ordinance restricting boat anchoring. Dumas intentionally violated the ordinance because he said it conflicts with state statutes on navigation. He plans to fight the citation in court.

The 42-foot Krogen motor yacht “Kinship” was cited at 7:40 a.m. Thursday and the skipper of the vessel, Marco Island resident David Dumas, was issued a Notice To Appear in Collier County Court on Feb. 15 at 8:30 a.m.

The notice was given to Dumas by Marco Island Police Department marine officer Hector Diaz. The officer said that Dumas violated a regulation of the Marco Island Waterways and Boating Safety Ordinance.

The Notice To Appear states that Dumas violated the ordinance “for being moored for 12 hours within 300 feet next to a sea wall and State Route 951.”

“He simply stated that he had given me a warning yesterday that I was in violation of the anchoring law,” Dumas said. “¤‘This is an arrest,’ he said. I was being arrested for a misdemeanor.”

According to Dumas, Diaz said that if he agreed to appear in court on Feb. 15 that Diaz would release him on his own recognizance.

“I replied that I would be there,” Dumas said.

He noted that Diaz and a second marine officer were very professional, straight-forward and courteous.

“There was no request out of the ordinary,” Dumas said.

The Marco Island Police Department issues a verbal warning to a boat intentionally violating a city anchoring ordinance at noon Wednesday. The boaters, who have been in Smokehouse Bay near the Esplanade since 2 p.m. Tuesday, later received a written warning. The boaters claim the city ordinance goes against state law.

Submitted photo

The Marco Island Police Department issues a verbal warning to a boat intentionally violating a city anchoring ordinance at noon Wednesday. The boaters, who have been in Smokehouse Bay near the Esplanade since 2 p.m. Tuesday, later received a written warning. The boaters claim the city ordinance goes against state law.

He added that he expressed his support for the police department for maintaining safety in Marco waterways.

Capt. Lee Oldershaw, another experienced boater and island resident, was on board the vessel. He said that before issuing the Notice, the officers measured the distance by laser that the vessel was from the shore.

“This organization has the responsibility to implement policies and enforce the laws adopted by the elected city council,” Marco Island City Manger Bill Moss said Thursday. “Their policies reflect the expectations of our community. It is unfortunate that one or more people intentionally violate laws because they disagree with the vast majority of Marco Island citizens.”

Dumas and Oldershaw told the Marco Eagle on Jan. 12 that they would pilot the vessel to Smokehouse Bay and anchor within 300 feet of the shoreline and wait to be approached by an officer.

According to reports, boating groups, including the Sailing Association of Marco Island (SAMI), the local and statewide Standing Watch organizations and the National Marine Manufacturers Association, have threatened to take the city to court if a boater is cited for violating the ordinance.

Another controversial regulation is that a vessel cannot anchor more than three days in the island’s waterways without proof that the boat has been pumped out.

Boaters and organizations say that the two regulations of the Marco ordinance 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 such mooring fields.

The statute also states that local governments can enact and enforce regulations which 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 have permitted or marked mooring fields.

Noted criminal defense attorney Donald P. Day of Berry, Day and McFee in Naples, will represent Dumas in court.

The Florida Chapter of Standing Watch, a state-wide boating coalition, is dealing with municipal regulations in several areas throughout the state.

“The problem is that each municipal law attempts to override existing state law,” Jim Kalvin, president of the Standing Watch Florida board of directors, said. “The mosaic of municipal laws throughout Florida are not coordinated, consistent, or posted.”

He said that traveling boaters have no way of knowing what local laws may be in effect from one anchorage to the next. That leads to confusion, ignorance of existing ordinances, or even fines or imprisonment, according to Kalvin.

“Enforcement and penalties, as well, differ from locality to locality,” he said.

Kalvin added that the citing of Dumas will set a precedent throughout Florida.

“It will allow existing state law, which is consistent and well-known, to govern navigable waterways as it was designed to do,” he noted. “Standing Watch supports the enforcement of all existing law – to the fullest extent – prior to adopting new legislation or regulation. As even the proponents of the Marco ordinance admitted in meeting after meeting, there was no existing problem to address when this law was created.”

Marco Island resident and experienced boater Herman Diebler received the Notice To Appear from Dumas and delivered it to Day.

“Donald Day said to bring me the paper and he will proceed on it,” Diebler said. “He has sufficient information to defend Dumas. The rest will take care of in due time.”

Day said that, statewide, citizens appear to understand clearly what the Florida Legislature has authorized municipalities to do in regards to mooring issues and restrictions on live-aboard vessels. The Florida Fish and Wildlife Conservation Commission (FWC) has worked with municipalities all over the state that have addressed some of those issues, according to Day.

“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 are vested solely with the state and not local municipalities. Municipalities have some authority over public waterways only because the Legislature created a statute that gave them the authority provided that they follow the mandates of the statutes.

“Which the city of Marco Island did not do,” Day said. “Marco is trying to regulate people from using their waterways. We, the people of Florida, own the waterways up to the high tide mark.”

An irony exists, according to Day, because he went through a similar battle about 15 years ago when the Collier County Commission got complaints from Marco residents about mullet fishermen fishing in their canals. Day said that the county passed an ordinance that prohibited vessels from traveling in the canals for the sole purpose of commercial fishing.

“I filed a motion stating that the ordinance was unconstitutional because a local government cannot pass laws closing off waterways to public citizens,” Day said. “The only person that has the authority to do that is the state.”

A local judge agreed with Day and opened the canals to commercial fishing, saying that the ordinance was unconstitutional.

SAMI taking the lead for boaters

Carl Henning, husband of BJ Henning, the newly-elected commodore of SAMI, said that he was very happy that the city issued the citation.

“SAMI is spearheading this locally,” Henning said. “We are looking forward to fight this ordinance in court.”

Henning said that, at some point in time, the local issue will change when the ordinance goes to the state level.

“We have a lot of support for this.”

Henning said that Day, in previous conversations, boaters will up against the state prosecutor.

“When the judge rules on it, the judge will be setting a precedent,” Henning said. “We anticipate getting a statewide referendum.”

Outgoing SAMI Commodore Sheri Heard said that the association supports the efforts being made by Dumas to challenge the Marco ordinance.

“This Marco anchoring ordinance is contradicting the law signed into effect by Jeb Bush,” Heard said.

She referred to an article in the Jan. 16 issue of the Eagle that included reference to the Jan. 2007 issue of Southwinds magazine.

“From these articles you will see the unfriendly message Marco is sending to the cruising community,” Heard said. “People have been misled regarding the dumping and polluting of cruising vessels. There are state laws that handle such offenses.”

Class action suit

Many local, state and national organizations are discussing the option of filing a class action suit against the city of Marco Island.

Henning noted the option of a class action suit and that Standing Watch is very much interested in the Marco Island ordinance. Day said that he wasn’t participating in the class action discussions.

Henning added that SAMI is continuing discussions with Standing Watch and the National Marine Manufacturer’s Association.

“We are all in it together,” he said.

Civil liability

Just as important as the ordinance being illegal, according to Day, is the possibility that no one from the city government consulted with Capt. Alan Richard, assistant general counsel for the FWC. Richard spearheaded the revision of the state statute that the Legislature passed during last year’s session.

“For whatever reason, which is yet unclear to me, the city of Marco sought no input from the state, acted on their own accord and created an ordinance which is essentially illegal,” Day said. “It doesn’t even follow the mandate of the statutes.”

Day questioned the law firm that represents the city of Marco Island. He said he couldn’t understand how a counsel of a local government could not have consulted with Richard, the legal representative of the state in charge of the public waterways.

“If they called him and the state said, ‘You can’t do this,’ then Marco Island has a really big problem and the city has some civil liability,” Day noted.

Richard noted that the Dumas case is a pending criminal matter.

“Officially, it would be inappropriate for me to comment on it at this time,” Richard said.

Rich Yovanovich, Marco Island city attorney, did not return e-mail and phone messages seeking comment.

Also not returning e-mail and phone messages seeking comment were Marco Island Police Chief Roger Reinke and Marco Island City Council Chairwoman Terri DiSciullo and council members Glenn Tucker, Mike Minozzi, William Trotter, Charles Kiester, Ted Forcht and Rob Popoff.

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

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Comments » 6

EdFoster writes:

It will be very interesting to see this play out in court. Mr. Day says that the City "created an ordinance which is essentially illegal" because "it doesn't even follow the mandate of the statutes." The City did exactly the same when it created the STRP and established "special assessments" for the first two districts without following state code. When CARES challenged the City's suit against residents to validate the bonds, Judge Hardt ruled "That's okay guys, the City has 'Home Rule' and can do whatever it wishes." If Home Rule permits the City to ignore state law when making special assessments, doesn't it permit the City to ignore state law when limiting boating rights?

Would that Mr. Day is correct when saying “State statutes and constitutional obligations override any local or municipal ordinance ..." That's what CARES attorney thought too!

Would that Mr. Day is correct in believing that "The Florida Constitution actually protects the citizens of the state of Florida.” Judge Hardt sure didn't see it that way when he validated the City bonds. That case has been appealed to the Florida Supreme Court so the final word isn't in yet.

Let me make it clear that I am not arguing for or against the Waterways Ordinance. I know of people who dump their tanks without going out 9 miles as required on the west coast of Florida. Nonetheless, what's sauce for the goose is sauce for the gander. If Mr. Day succeeds in overturning Marco's Waterway Ordinance, shouldn't the STRP assessments be overturned as well? He says "People have been misled regarding the dumping and polluting of cruising vessels. There are state laws that handle such offenses.” The same is true of septic tanks on this island. People have been misled in being told that septic tanks are polluting our waterways and there are state laws that would handle such offenses if they occur.

Ed Foster

blondie writes:

Interesting twist. Good luck. The anchoring issue is clearly delineated in Florida statutes making Marco's ordinance clearly illegal. Home rule will be their argument however it explicidely does not apply here. I am not sure about the sewer issue. For all our sakes I wish you well.

flcat writes:

You people need to get a life and find some other activity to do besides worrying about this. How would you feel if someone anchored in your backyard for days upon end. You would be the first person to call the police and have them removed. Give it up and go play golf or move back up north.

15yearsmarco writes:

flcat, That's the chance you take when you buy a house on the water, these laws have been on the books forever.
If you don't like the boats move inland or take your own advice and move north.

capt1black writes:

Marco Island City Manger Bill Moss said Thursday. “Their policies reflect the expectations of our community. It is unfortunate that one or more people intentionally violate laws because they disagree with the vast majority of Marco Island citizens.”

I am not sure what country Mr. Moss has moved to. Whether you believe in the ordinance or not, the right of a citizen to partake in civil disobedience to fight what they believe to be an unjust law is part of the foundation of this country. For a public official to criticize this fundamental right is unfortunate. If the law is just, than Mr. Moss has nothing to worry about; if it is not, than it will be overturned as necessary.

bbyrone46 writes:

The statement that "policies reflect the expectations of our community" is flawed thinking for many reasons. What if the expectations of the community were to permit skinning dipping on our beach? Don't laugh, because if this City becomes a "Tourist Destination Resort" as Moss and company want, we may find our community becoming similar to the one in Miami's South Beach. I wonder what our clergy would think about those expectations.

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