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.
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?
“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.”