Marco council decides at closed session to appeal anchoring case

Newspaper objects to meeting being held behind closed doors

The City of Marco Island will appeal a Collier County judge’s ruling that declared unconstitutional an ordinance restricting boat anchoring in city waterways.

Council Chairman Mike Minozzi announced the decision after emerging from a closed-door session Monday afternoon.

Collier County Judge Rob Crown ruled Oct. 25 that a city ordinance restricting anchoring to a maximum six days at a minimum 300 feet from land violated state statutes, and tossed out the city law.

The city has argued restrictions are necessary for the health, safety and welfare of its residents and property owners, and are allowed under “home rule” provisions.

A city resident, Dave Dumas, 65, intentionally violated the ordinance in January on constitutional grounds by anchoring his 42-foot cruising trawler “Kinship” in Smokehouse Bay.

The appeal will be heard by judges in Collier Circuit Court.

The case has received attention from state and national boater advocacy groups, particularly in light of a 2006 change in state law that further restricted a municipality’s right to prohibit anchoring. Because the ruling was made by a county judge, it doesn’t set precedent for others across the state.

Two supporters of Dumas, Marco residents Lee Oldershaw and Herman Diebler, were pleased at council’s decision because they said a ruling at the appellate level would hold more weight.

“I know that boaters in Florida and up and down the east coast and in the Carribean are thrilled by this decision,” Diebler said. “As a taxpayer I’m incredibly disappointed that we’ll be wasting more money.”

As City Attorney Dan Abbott, who is prosecuting the case, left council chambers, Diebler waved at him and said, “See you in court.” Abbott waved back.

Monday’s meeting was closed to the public despite an objection by the Naples Daily News.

A Daily News reporter entered the meeting and read a prepared statement asking for a statutory reason for the closed session. City Attorney Alan Gabriel referred to state Statute 286.011 and ordered the reporter to leave the room.

The statute states public agencies can meet with their attorney in a closed session if there’s pending litigation against that agency and if the subject matter is confined to settlement negotiations or strategy sessions related to litigation expenditures.

Verbatim transcripts of the meetings must be provided to the public after the litigation concludes.

What makes it questionable that this meeting could be held in private, Daily News Editor Phil Lewis said, is that the meeting related to a criminal case, not a civil case.

“The Daily News is concerned because ordinances or laws are part of the criminal code and that isn’t what this exemption is for,” Lewis said. “It is for civil litigation and for legal strategy in an effort to save the taxpayers money. This is totally different. It’s about a passage of criminal code and all of it should be done in the public. It’s apples and oranges.”

Barbara Petersen, president of the First Amendment Foundation, a state open-government organization supported by the media including the Daily News, said the question of whether to close a meeting under these circumstances was unprecedented.

“I don’t know that anyone has closed a meeting like this before,” she said.

Petersen said the organization was consulting its attorneys about the matter.

In most criminal matters, the State Attorney’s Office prosecutes the case.

However, in this case, the city’s legal firm, Fort Lauderdale-based Weiss Serota, prosecuted the ordinance violation. The city contracted with Weiss Serota after it was discovered in July that the city never signed an interlocal agreement with the local State Attorney’s Office to prosecute its ordinances, as required by state law.

An 8.5-hour hearing on a defense motion to declare the city’s ordinance unconstitutional was held Oct. 12. Prior to the hearing, the city held two other closed sessions with Weiss Serota with the stated purpose of deciding whether to fund the prosecution.

The Daily News requested transcripts from the first two meetings, but the request was denied by Gabriel under the same provision of the law — that lititgation is pending.

Lewis said that since Marco’s council decided to meet in a closed session Monday, the newspaper would be checking with its attorney to determine if it would challenge the decision in civil court.

Gabriel requested an additional closed session with council on Dec. 3.

Attending the meeting Monday were the seven members of the council, City Manager Bill Moss and city attorneys Gabriel and Abbott.

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

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Comments » 9

blondie writes:

With so many more important issues facing this City, it is unbelievable that the council would waste time and taxpayer money on this issue. There seems to be far more compelling issues facing this council than this anchoring ordinance. This just does not make sense. It sounds more like a vindictive matter than a legal matter. The council of Marco as well as Mr Moss seems that "SAVING FACE" is far more important that saving taxpayers money.

bbyrone46 writes:

This Council is bound and determined to spend as much money (that doesn't belong to them), as possible before they leave office. They fight for false principals and have so much false pride they hide behind. Aren't those major sins in the Christian faith? Oh well, they have proven over and over again that they lack a moral compass and were never taught to admit mistakes. So be it.

Rachael writes:

This is outrageous! This city council reeks of self-entitlement, arrogance and irresponsible spending.

The article says: “The city contracted with Weiss Serota after it was discovered in July that the city never signed an interlocal agreement with the local State Attorney’s Office to prosecute its ordinances, as required by state law.”

What?!? The City of Marco Island did not follow state law and so now we have to pay an attorney to prosecute the case?

In my opinion, the council members (and other governmental figures) feel that by incorporating themselves as a city that they have become their own country! NEWSFLASH: Incorporating an Island into “City” status does not allow you to ignore state law and make up which ever irrational and unconstitutional laws you see fit.

These council members need to educate themselves on Florida law – stat.

Oracle writes:

This council has no conscience when it comes to spending our money to serve their agenda and egos. The replacements they offer, another attorney, a guy that hasn't worked in 12 years, and a bartender turned real estate salesman offer nothing more than four more years of the same. This island cannot survive that!

We need a fresh team in January in order to save the island. Vote for Joe Batte, Roger Hall, Andrew Guidry MD and Butch Neylon in January. All proven leaders with succesful careers behind them.

Lolala writes:

Back room meetings and secret deals being made. How else can you discuss plans for your city when your subjects are planning a coup just outside? Our leaders have been told that home rule gives them the power and boss Moss doesn't like to loose. These are silly little men living in dangerous times. Secrecy is the only way they can scheme when plotting the fleecing of the public. Don't be so hard on them. They are big thinkers and need to discuss weighty things under the hush-hush because we the public don't know whats good for us. Afterall,we shouldn't complain because it was we who elected them. If you want to continue with this crap then don't vote for Allen, Batte, Guidry, Hall or Neylon.

thataway4 writes:

Well, the council has violated the sunshine law--by excluding the press and refusing to give transcripts.

Lets hope that the attorney general is involved and proper actions are taken!

What a waste of the tax payers money and resources. You all must live in fear!

Eagleeye writes:

In general, I think the criticism of the City Council is unwarranted. Not in this case. It truly is a waste of MY money to be appealing this decision. And there is absolutely no reason why this decision had to be made in executive decision. It had nothing to do with the discussion of confidential personnel information. Open the meeting up. And change your vote.

EdFoster writes:


Sorry to say, you're wrong about the city's omnipotent powers under "Home Rule" ... at least in the eyes of Judge Hardt and the supreme courtof the State of Florida. The city completely ignored state regulations when setting the assessments for the first (and every subsequent!) sewer district and sued the State of Florida, the property owners of Marco Island, C.A.R.E.S., Inc. and Douglas and Frances Enman asking the court to bless (validate) their bonds. CARES used member contributions to oppose the city in court and was joined by the State of Florida, represented by the Attorney General's office for Collier County. Judge Hardt ruled for the city on the basis that "home rule" gave the city the right to ignore state regulations in making the assessments. We were so shocked, we appealed to the supreme court ... and lost there too. So, my dear Rachel, it appears that Home Rule gives local governments the power to ignore state rules whenever they wish ... at least in the good-ole-boy State of Florida!

Ed Foster
Former Chairman of CARES, Inc.

By the way, this was the first and only fully adjudicated court battle between CARES and the city and was brought BY THE CITY, not by CARES as those Masters of Misinformation would have you believe.

mimssandi writes:

This seems to be a very expensive waste of money. What are the provisions for a recall election? That would be cheaper.

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