After the thousands of hours, court dates, meetings, e-mails and documents, the fate of anchoring in Marco Island’s waterways may come down to the meaning of two words.
- 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
On Friday morning in Collier County Court, Judge Rob Crown will hear a motion to dismiss the case of a boater who intentionally violated the island’s anchoring rules earlier this year based on constitutional grounds.
A Marco ordinance limits boaters to three days of dropped anchor at a distance of 300 feet from shore. Dave Dumas, 65, intentionally anchored his 42-foot cruising trawler named Kinship in Smokehouse Bay from Jan. 16 until Jan. 18 when the city’s police department cited him for violating the ordinance.
The attorney for the boater asked that the court dismiss the case based on at least 10 grounds, but the two words “in navigation” have attracted the most attention. They appear as part of a July 2006 change to state law, which occurred after Marco passed the Waterways and Boating Safety Ordinance in April 2006.
Florida law dictates that local municipalities cannot restrict the anchoring of boats that are “in navigation” in its waterways.
Dumas and his Naples attorney Donald Day, who has taken the case pro-bono, contend that the Marco ordinance is a clear violation of state law.
“The (state) statute is no longer vague,” explained Capt. Alan Richard, assistant general counsel for the Florida Fish and Wildlife Conservation Commission.
Richard rewrote the law at the request of state Rep. Mitch Needelman, R-Melbourne, a former state marine patrol officer who chairs the state’s environmental regulation committee.
“A vessel in navigation is one that’s capable of being used as a means of transportation on the water,” he added.
This definition would presumably include Dumas’ boat.
Richard cited federal case law and almost 25 years of state legislative action to support his interpretation and revision of the law.
“The intent then was to prevent local government from over-regulating boat anchoring and prevent a whole mosaic of inconsistent ordinances from local government,” he said.
The defense has subpoenaed Richard as an expert witness.
To varying degrees of success in court, however, local governments have passed anchoring ordinances for years.
In the early 1990s, a Pinellas County Court upheld an anchoring ordinance by the City of Clearwater. A year later, the City of Riviera Beach had a similar ordinance overturned in a Palm Beach County Court.
City governments have confronted state prohibitions by attempting to narrowly define their law’s purpose. The stated intent for many of the local laws is to prevent derelict and transient boaters from dropping anchor for weeks at a time.
This restriction would be allowed under the state’s “home rule” provision, as Marco Island’s attorneys argue, because it has an impact on a city’s “health, safety and welfare.”
The City of Miami Beach received much of the same scrutiny as Marco when it passed an ordinance two years ago. Miami Beach City Attorney Jose Smith said there were “significant differences” between his city’s ordinance and Marco’s, such as a 165-word definition of “in navigation.”
“It is noteworthy that despite repeated threats of lawsuits and boycotts by boating industry lobbyists and other special interests, our ordinance has not been challenged and serves as a model for other cities to follow,” Smith said in a statement. “We are confident that it will withstand any legal challenge.”
Even with the 2006 change in state law, there remain questions about its interpretation. Two University of Florida law professors released a paper last October that called local government’s ability to restrict anchoring “questionable.”
The Florida Fish and Wildlife Conservation Commission also expressed concern about the clarity of the entire statute, which also addresses vessel safety, not just anchoring restrictions.
Commission officials toured the state this year holding public meetings on the subject. The result is an FWC Division of Law Enforcement proposal to address vessel management for the 2009 state legislative session.
The case has also attracted the interest of national boater advocacy groups.
“To me this case strikes at the heart of the boater access issue,” said Margaret Podlich, vice president for governmental affairs at BoatUS, an organization with 650,000 members across the country. “We see the access issue as one of the very biggest long-term concerns for boaters. This is a very significant cause for concern.”
Back on Marco, the debate over the ordinance has played out to near comic excess. During an April City Council meeting where Dumas supporter Herman Diebler was removed from the Waterways Advisory Committee, Dumas’ “civil disobedience” was compared to protests of slavery, women’s suffrage and segregation.
Last month the Marco Waterways Organization, a group headed by two vocal islanders that lobbied for the anchoring ordinance, paid nearly $2,500 for a two-page advertisement in a local newspaper which used mangled English and suggested drug runners could anchor in Marco indefinitely without the law.
The city’s failure to sign an agreement with the local State Attorney’s Office to prosecute prompted the ad.
Instead, the city is now relying on Fort Lauderdale-based law firm Weiss Serota; consequently, the legal costs are now more than four times what they would have been if Marco Island had contracted with the state attorney.
Based on that information, the City Council held two closed attorney-client sessions with the firm in September to decide whether to prosecute, and ultimately chose to proceed.
The city has spent more than $20,000 on the case so far.
Marco Island City Councilman Ted Forcht said he expected a court challenge when he voted in favor of the ordinance 18 months ago.
“People who were against this anchoring ordinance had threatened that from the very beginning,” he said. “The vote came with a clear understanding that we might be opening ourselves up to litigation.”
Regardless of the outcome of today’s hearing, both sides have expressed an interest in pursuing the case at the appellate level. Only then could the result set precedent for the rest of the state.
“It’s not just Marco,” Forcht said. “Now it has to do with boating all over the country in coastal areas. I want a definite answer.”