Marco anchoring case still afloat

The Marco anchoring case fraught with questions of who would prosecute — and later, whether to prosecute at all — will go to trial after all.



That latest question was settled Tuesday when the Marco Island City Council, emerging from a closed door session with a city attorney, declared that the city would continue with prosecution of the boater charged with violating a controversial anchoring ordinance.

In the case of the State of Florida vs. David Dumas, the city was forced to go it alone after state prosecutors discovered in July that the city never signed a contract agreeing to compensate the Florida state prosecutors.

Rather than contracting with state lawyers for a $50-an-hour legal fee, the city instead had to turn to the firm it retains for city business. The Fort Lauderdale-based firm, Weiss Serota, charges $210 an hour.

To date, the city has incurred legal fees of $14,000 in prosecuting the case, city Finance Director Bill Harrison said.

City Manager Bill Moss said he anticipates that tab growing by a possible $10,000 during the upcoming court appearances, though the city has not formed any express authorization for the expenditure, and costs could increase further if appeals are necessary.

“When (City Council) adopted this ordinance, it was clear it was going to result in litigation,” Moss said. “City Council recognized when they passed that law that, they believed, it was something the community wanted. They are willing to spend the necessary money to prosecute this case.”

Supporters of Dave Dumas have claimed that the city is overreaching with its defense of the ordinance, which they say stands in direct opposition to a state statute passed two months after the city ordinance was adopted in May of 2006. Boaters across the state are closely eyeing the case, as it is expected to establish precedent for municipalities in governing boaters.

Because the case raises questions of constitutionality, both parties recognize the possibility that it could reach into the state’s highest courts.

“Appeal is possible, and City Council is prepared for that,” Moss said.

The case is scheduled for an Oct. 3 status check, with a hearing expected later in October for the defense’s motion to dismiss the case as unconstitutional.

That motion was originally set to go forward Aug. 14. While attorney Donald Day arrived with witnesses, prepared to discuss his motion, the prosecution team arrived with the intention of discussing a change of attorney motion.

District Judge Rob Crown berated city attorneys Dan Abbott and Richard Yovanovich for arriving unprepared, after already having experienced months of delays resulting from the shuffle in prosecutors.

With the ball rolling again on the case, the city has received an offer of additional help from the Marco Waterways Organization. The organization was instrumental in organizing support for passage of the ordinance last year, and has now offered the help of its attorney, Michael Karcher.

Karcher, an expert in maritime law, works with the Coral Gables-based firm of Karcher Canning and Karcher, and will be compensated by the waterways organization for any work he does on the case.

Moss said Karcher will not be a member of the prosecution team, but that city attorney Dan Abbott may seek “advice and assistance” from Karcher.

“We’re going to provide whatever they need,” Karcher said. “I’m an attorney working for Marco Waterways Organization, and we have offered our help. Whatever the city attorneys would need or like us to do, we will do for them.”

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Comments » 7

blondie writes:

Its about time that the citizens of Marco realize that there is and as never been a problem with the few boats that anchor in Factory Bay. I have lived here over 10 years and there never was a problem from the few boats that anchored in Factory Bay. There were no problems until one person with his own view of Factory Bay voiced his objections to anyone anchoring here. Folks say that boats should go to a marina. What, if any, assurances do you have that boats in a marina do not use their holding tanks? We have lived here 10 years and there NEVER was a problem before one man used scare tactics to arose our uninformed citizens. What assurances do you have that run abouts that use our waters all the time and do not have sanitation facilities are not guiltly of dumping overboard? They are more likely to offend than cruisers who are equipped to handel these personal concerns. It is about time that the residents wake up and use logical reasonoing to figure this out. Cruising boats are VERY aware of the enviornment.Cruising boats are equipped to handle several days of sanitation needs and dispose of their waste properly. When, if at all, has there been a problem in the anchorage due to noise. Common sense must rule. Cruising boats cannot fit under the bridges in our neighborhoods. Why insight people to be afraid that people will anchor any where? We did not have problems before Why would Marco have them now? There are laws in place now for any and all boats that might break them. Not unlike laws that are on the books for traffic violations, offenders would be handled by the proper authorities.

ed34145 writes:

The law originally proposed was much more sensible; thank Bill McMullan for the changes. The law that was passed was NOT the one recommended by city manager, attorney, or police chief. It was the one pushed by McMullan.

blondie writes:

The ordinance that was passed most resembles that prepared by Moss and enhanced in concert by McMullan.

captnjimbo writes:

Way to go Blondie and EDzipcode.

We should repeal this ordinance and let some other city take it to the Supreme Court.

strike3 writes:

This Mcmullan guy is a retard. He and the city will lose. This place is being ruined by McMullans. They are making Marco Island a joke. Yesterday Dave Elliot on Naples Talk was making fun of the people on Marco, and the island in general. This place is turning into a waiting room for people waiting to die. Most fun they have is trying to prevent other people from living. Time to leave soon.

P.S. Dumas and Day, make sure you pull from all the cruise organizations, boaters rights, boat manufactures etc. They will be more than willing to support your cause and shove it the cities and mcmullans rear. Then when you win invite every cruise club in America to come spend a weekend anchored 300' from mcmullans dock for a huge party. Like the Columbus day regatta in Biscane Bay in Miami. That might even help support some of the businesses on the Island.

blondie writes:

Ladies and gentlemen let us be clear where the blame lies here. McMullan is only an instrument of Dennis Morressett. Moss is an enabler of Morressett with the sameness of mind. Let it be clear, our taxpayers money is now being spent, only, to protect Moss's ego. He can't be wrong and he will spend any amount of your money to show you he is right. The council is scared to act in opposition to Moss and/or Morressett. McMullan carries the water here.

tathiede writes:

What's with all these comments about Marco being a joke and a waiting room for people to die? I am not retired or old and I'm fortunate to live on Marco. It is a beautiful place and everyone knows it. I have found that many people are jealous of that fact and will say anything so they will feel better since they don't live there. Residents on the island can't help it if they have morons on their City Council who are not following what they wish. The current City Council have their own agenda. I for one, can't wait till we vote new people in and return to what once was.

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