Marco ordinance convictions could be set aside

Noted criminal defense attorney Donald Day told the Marco Eagle this week that the past convictions of anyone cited for violating Marco Island ordinances and prosecuted by the Florida Office of the State Attorney could be overturned.

“I’ve had six calls from people who were convicted by the State Attorney’s Office of violating Marco ordinances,” Day said.

When asked how many convictions there have been for violating the city’s ordinances, Marco Island City Clerk Laura Litzan said the police department does not track files prosecuted by the Florida State Attorney’s office.

“The city would give all those cases up just to continue with this one. Prosecute at all costs,” Day said.

Day, a partner in the Naples law firm of Berry, Day, McFee and Martin, P.A., referred to his defending Marco Island resident and boater Dave Dumas in Collier County Court.

In January, Dumas violated an anchoring regulation of the Marco Island Waterways and Boating Safety Ordinance. The Office of the State Attorney agreed to prosecute the case. Judge Rob Crown has been assigned to hear it. A March 23 trial date in Collier County Court was continued.

Mara Marzano, the assistant state attorney prosecuting the case, discovered this month that the city of Marco Island never signed an interlocal agreement with the office to reimburse the state for prosecuting violations of the city’s ordinances. Marzano was to present briefs in the court on July 10. She notified the city and court on July 6 that the office could not prosecute the case in the court.

The state and the city’s new law firm, Weiss Serota Helfman Pastoriza Cole and Boniske, P.L. of Fort Lauderdale, filed an emergency joint motion with the court. The motion asks that Weiss Serota replace the state as prosecutor. The firm also motioned for more time on the briefing schedule.

“Marco and the State Attorney’s Office have revealed that the state did not have the authority to prosecute ordinance violations on behalf of Marco,” Day said. “That means, since Marco has been a city, anyone who has been charged against an ordinance violation and prosecuted by the state attorney’s office could have those convictions set aside because it was done without authority. This is huge.”

The Eagle sent e-mails on Monday to the State Attorney’s Office and Alan Gabriel of Weiss Serota, the lead attorney representing the city. Neither the state or Gabriel have responded to a request for comment on the issue.

Day said, unlike other municipalities in the area, Marco Island did not contract properly.

“They now have to retain their own lawyer to prosecute the case,” he said. “I understand that (Marco Island Police Chief) Reinke said they want to prosecute themselves anyway.”

Day said the State Attorney’s Office improperly filed the change against Dumas because it did not have jurisdiction. The charge would have to be dismissed, according to Day, and a new lawyer with the proper authority would have to charge Dumas.

“The technical procedure is confusing because I don’t know if it has ever happened before,” Day added.

The Eagle learned Dec. 15, 2006 that a vessel would violate the ordinance the Marco Island City Council approved on May 1 of that year. An article in the Jan. 15, 2007 issue reported that Dumas would violate the ordinance by anchoring his 42-foot Krogen motor yacht Kinship in Smokehouse Bay within 300 feet of shore for more than 12 hours.

Dumas and fellow Marco Island resident Lee Oldershaw anchored the vessel in the bay on Jan. 17. Dumas was cited by a Marco Island Police Department marine officer two days later and issued a Notice To Appear in Collier County Court on Feb. 15.

The Marco Island City Council authorized ordinance 06-05 on May 1, 2006. The law was adopted by the council 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.

Another regulation of 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.

The Dumas case has received local, state and national attention. Boating groups, including the Sailing Association of Marco Island (SAMI), the local and statewide Standing Watch organizations, the 650,000-plus member BoatUS association and the National Marine Manufacturers Association are closely watching the judicial proceedings. The pending decision in the case is being viewed as precedent setting in marine law.

The boating groups say that the two regulations are in conflict with Florida Statute 327.60 that was passed by the Legislature and signed by former Gov. Jeb Bush on July 1, 2006.

The statute prohibits local governments from regulating the anchoring of non-live-aboard vessels in navigation outside of a mooring field owned by the municipality.

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.

Day wondered if Marco Island city officials believed that the state statute was gray or unclear. If that were the case, Day questioned why city officials or the city’s former law firm, Goodlette Coleman and Johnson, P.A., never contacted the state and asked for clarification.

Alan Richard, an attorney for the Florida Fish and Wildlife Conservation Commission, took the lead in drafting the statute. Richard has been subpoenaed as a witness for the defense.

Day said state officials in the Capitol are “astonished” at Marco Island’s actions.

“Under the state statute, state officials have confirmed that anyone who tries to improperly mark or prohibit travel on waterways owned by the state of Florida commits a misdemeanor crime,” he said.

He added there is speculation in Tallahassee whether Marco Island has committed a criminal offense.

Day filed motions on April 23 with the court to dismiss the case and declare the ordinance unconstitutional. He stated in the motions that the Legislature understood that protecting the public’s waterways was the responsibility of the state, which held the waterways “in trust” for the citizens. He referred to Florida Chapter 327.

Since the motions were filed, Day has been contacted by attorneys and officials from six coastal municipalities who wanted a copy of the documents. He advised the attorneys to contact the state and Richard.

“Everyone of those municipalities are in the process of passing legitimate ordinances,” Day said. “Marco is one of the only ones who is having no communication with the state and not working with the state.”

Day said the city keeps saying that the Dumas case is some kind of test. Day disagreed and said the city’s stance is inaccurate because, after the city passed the ordinance, the state laws governing navigation changed.

“So how can the city be arguing in good faith that this is some kind of gray area?” he said. “The state of Florida and the Legislature went to great lengths to clear up the uncertainties in the laws.”

The bottom line, according to Day, is that the city has plenty of funds.

“They have said they will spend whatever it costs to defend an ordinance that the state of Florida and everyone else says is unconstitutional,” he said.

Day noted the city could simply amend the ordinance in a couple of days.

“Why doesn’t the city of Marco say we passed an ordinance and the state law changed, so now why don’t we just fix the ordinance and save the taxpayers a ton of money.”

Day said the answer is the city has an ample amount of taxpayers’ dollars and doesn’t mind spending it.

“What they are trying to do is struggle and grasp anything they can so they don’t have to admit that they were wrong,” he said. “Instead of circumventing all of those issues and solving this in a day — fight at all costs regardless of all moneys. So much for the $1.5 million deficit that the city has.”

He suggested that Marco Island taxpayers tell City Hall “enough is enough and this is crazy.”

Day expects the Dumas case to proceed in county court on Aug. 14. If the city looses the case, they could appeal to Collier County Circuit Court. The next levels of appeal would be the District Court of Appeals followed by the Florida Supreme Court.

Day said the case may go to U.S. Federal Court because there are federal issues involved.

“You could be talking about three to four years of litigation,” he added. “But since Marco has plenty of money, it should be no problem.”