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.
MARCO – DAVID DUMAS ANCHORING CASE
- DOCUMENTS: Read the court order declaring the city of Marco Island's boat anchoring ordinance as unconstitutional. 624 kb .pdf file
- DOCUMENTS: Florida statute on boat anchoring. 87 kb .pdf file
- DOCUMENTS: Marco Island ordinance on boat anchoring. 1.2 mb .pdf file
- DOCUMENTS: Defense motion to declare city ordinance unconstitutional. 2.6 mb .pdf file
- DOCUMENTS: Marco attorney response to defense motion. 960 kb .pdf file
- RELATED: Marco council decides at closed session to appeal anchoring case (11-05-07)
- RELATED: County judge set to determine fate of anchoring boats off Marco (10-11-07)
- RELATED: Dumas anchoring case: A timeline (10-11-07)
- RELATED: Marco anchoring case still afloat (09-26-07)
- RELATED: As deadline draws near for Marco anchoring case, tension finds unlikely target (09-21-07)
- RELATED: Marco anchoring hearing set (08-30-07)
- RELATED: Motion filed to declare waterways ordinance unconstitutional (04-26-07)
- RELATED: Motions scheduled today in waterways ordinance case (04-17-07)
- RELATED: Council votes to remove Diebler from Waterways committee (04-12-07)
- RELATED: Anchoring violation trial continued (03-26-07)
- RELATED: Judge postpones Marco anchoring ordinance case (03-23-07)
- RELATED: Marco police chief to attend anchoring workshop (03-13-07)
- RELATED: Marco man who intentionally violated city anchoring ordinance scheduled to stand trial next month (02-16-07)
- RELATED: Boater cited for violating waterways ordinance (01-18-07)
- POLL: Results: Should the Marco Island Waterways and Boating Safety Ordinance be declared unconstitutional?
- POLL: Results: Should a motion be filed to dismiss David Dumas' waterways ordinance case?