Civil disobedience alive and well on Marco Island

At 7:40 a.m. Dave Dumas hadn't yet rolled out of the bunk of his 42-foot cruising trawler boat anchored in Smokehouse Bay, when he heard a horn and knew what was about to happen.

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.

Since Tuesday afternoon, Dumas has anchored his boat in the bay near the Esplanade less than 300 feet from the docks and sea walls purposely violating a nine-month-old Marco Island law prohibiting such anchoring for more than 12 hours.

Dumas was protesting the ordinance claiming it doesn't comply with state statutes on boaters' navigation rights.

Wednesday brought warnings from the Marco Island police, both verbal and written. Thursday figured to be the day for something more.

When the police arrived at his boat in the fog Thursday morning, Dumas said he asked for some time to pull on his

shirt. He then was arrested for not complying with the ordinance, fulfilling his purpose when he went out on the bay.

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 was issued a notice to appear in Collier County Court on Feb. 15 at 8:30 a.m. The officer told Dumas that if he agreed to appear then he would be released. Dumas said he responded, "Yes, sir."

On that date, the legal challenge to the ordinance would begin.

Dumas promptly pulled up anchor and went on his way. The whole process, Dumas said, was all in the game.

"They had moved their rook," he said. "I had moved my knight and all the pawns were taken off the table."

The state under the authority of regulatory organizations like the Florida Fish and Wildlife Commission does not allow local

governments to restrict non-live-aboard boats in navigation.

The FWC and boater advocacy groups, such as the National Marine Manufacturers Association, have claimed that a July change in state law made the language more precise to prohibit municipalities from establishing anti-anchoring ordinances outside of mooring fields.

Still, the state does not define the term "in navigation" in its statute. That opening Marco Island City Manager Bill Moss said formed the basis for the city's ordinance. The city ordinance states that "a vessel moored or anchored for an extended period of time, for reason other than emergency, repair, weather, or rest is no longer exercising the right of navigation."

Dumas said that Naples-based criminal defense attorney Donald Day has agreed to take his case pro-bono before the courts.

At the court challenge, Moss said the city would defend its position, but that he wasn't sure what would occur.

"I think the public record is pretty clear that anyone cannot confident as to what will hold up in court because there have been differing opinions," he said.

City officials have pointed to an October study by the University of Florida's Center for Governmental Responsibility that cited case law on both sides of the issue. The study said the lack of a definition for "navigation" leaves the validity of local anchoring restrictions "questionable."

Since the ordinance passed the Marco City Council last May, boater advocates have looked to alternatives such as establishing a mooring field in one of the city's bays. Mooring fields, where boaters can tie up in a floating city-run structure, can be regulated by city governments. Marco has established a subcommittee on the subject that is scheduled to present to the city's waterways advisory committee next month. But establishing a mooring field is far from guaranteed due to the cost involved and attempts to lobby council members to repeal the ordinance have fallen short, Dumas said.

The quickest and least costly option at this point, Dumas said, was to violate the ordinance and get a court date.

Should the court shoot down due to state statutory concerns, Moss said he would lobby the Florida League of Cities and Florida Association of Counties to request a change in state law to give municipalities more control over anchoring in waterways.

"This is a matter that goes beyond Marco Island," Moss said.