Marco attorney files brief in anchoring case

Contends lower court failed to address city’s argument

An attorney for Marco Island made good on promises by the city to file an appeal in the case of a resident cited for violating the city’s anchoring ordinance.

Dan Abbott, of the Fort Lauderdale firm Weiss Serota Helfman, filed the brief in Collier County Court March 20 after providing the court with a notice of appeal in December, indicating that the city would fight an October decision by district Judge Rob Crown.

Boater Dave Dumas was cited in January 2007 on suspicion of violating the ordinance restricting anchoring of his vessel within 300 feet of shore for more than 12 hours at a time, part of an intentional act of civil disobedience. His attorney, Donald Day, filed a motion to dismiss the case later in the year, citing, among other things, the conflict of the city’s ordinance with a state statute.

That argument was the one that stuck with the court, and Crown’s opinion stated that “local regulation regarding the anchoring of non-live-aboard vessels outside mooring fields is expressly prohibited by state law ... If (the city) believes there are circumstances that justify those exceptions to this general prohibition, then those circumstances should be conveyed to the Legislature. In the meantime, municipalities are not free to carve out those exceptions on their own.”

However, the brief filed by Abbott argues that the Florida statute addressing boat regulation specifically grants ability to local authorities to supplement the statute. Changes made to the statute in 2006 “provided for increased governmental authority over vessels,” according to the brief, by allowing a municipality to “regulate the specific matter of anchoring which ‘interferes with navigation.’ ”

The brief argues that the city crafted its ordinance to deal with boats that could interfere with navigation, specifically by anchoring within 300 feet of shore for an extended period of time. However, it states, the court fails to even address the city’s argument that state Statute 327 provides that authorization.

“The argument is not mentioned at all, no matter how briefly, in Judge Crown’s order,” it states.

The brief also addresses specific quality of life issues the city argued were impeded by the extended anchoring of boats off shore.

“Even when the vessels remained at anchor, their owners would disrupt the homeowners’ quiet enjoyment of their properties by loudly performing repairs on the vessels, and by running their diesel engines throughout the night to power their air conditioning systems,” the brief states.

The brief also brings up problems 15 miles up the coast, in which Naples Bay became contaminated, according to the brief, because of the illegal dumping of sewage from vessels moored there.

“Naples Bay, as well as several of its surrounding beaches, have been closed by the Florida Department of Environmental Protection because of the dumping of fecal matter,” it states. “Marco Island residents smelled raw sewage from their back yards, and would become physically covered with human waste when they entered the water.”

The Marco Island ordinance does address the issue of waste disposal, decreeing that boaters who anchor more than 300 feet away from shore can stay there for up to six days with proof of a pump-out. Without proof, boats are limited to three days at 300 feet or more from shore.

“Shortly after the ordinance was adopted, a noticeable decrease in the adverse effects of unlimited anchorage was observed by the community,” the brief states.

The decision to appeal by the city keeps alive the effort to defend the much-contested ordinance, a choice that was made by the Marco Island City Council behind closed doors at a series of shade meetings.

New City Councilor Jerry Gibson, who has only read a portion of the brief, said he has not perceived the problem to be so great as sometimes discussed.

“But I don’t live on the water, I don’t necessarily know,” he said. “However, I’m sure there are people what have experienced problems on the water. But I, personally, just in talking to different people, it never really seemed to be that big an issue.”

Fellow Councilor Wayne Waldack said he questioned the reasons for ever moving forward with the appeal, but said he would have to do his reading to understand the city’s grounds for the move. Likewise, Councilor Frank Recker said he would need to read up on the case, including Crown’s October ruling. Recker is an attorney specializing in medical law.

“I haven’t read it, so I’m interested to read it as a lawyer,” he said. “I suppose most of the expense has been incurred now because the brief has been filed. If I could have turned back the clock after the lower court ruled, I would’ve said, ‘Let’s go back to the drawing boards.’ ”

To date, the city has paid $49,000 in legal fees to Weiss Serota to defend the ordinance, said city Finance Director Bill Harrison. A paperwork oversight discovered in 2007 prevented the state attorney’s office from handling the case, leading the city to contract its private attorney to do the work at four times the hourly rate of the state attorney.

“The only difficulty I have with this continuing the appeal is that they are wasting my taxpayer’s money,” said Dave Dumas, the boater charged in 2007 with violating the ordinance. “They are wasting the money of all of the taxpayers of Marco Island.”

Dumas’ attorney, Donald Day, originally handled the case pro bono. Now that it has moved into the appellate system, Day is demanding compensation for his time.

“The fact that the city wants to stand up in front of the appellate court and argue their case is just fine, because the decision will not then be beholden to Collier County only,” Dumas said.

Dumas said he and Day have gotten calls from all over the state from boaters and cities interested in the dispute, often from opposite standpoints. Some national boaters’ rights groups are carefully watching the situation for a final outcome — a decision from an appeals court would help reinforce the lesson for municipalities over what can and cannot be regulated.

No date is set for the appeal, according to the Collier County Clerk of Courts Web site. Records show that Abbott did pay the $2,300 preparation fee to the court on Monday, nearly two months after the court initially billed the attorney for the filing and after multiple requests for extensions.

© 2008 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 2

dc5799 writes:

I thought the raw sewage in our canals came from our septic tank's?

maharg writes:

To restrict navigation which includes anchoring, even within 300 ft. from shore, requires permitting from the state and the posting of signs designating the restrictions. Marco did not do this. Indeed, the Assistant General Council for Boating and Waterways of the Florida Fish and Wildlife Conservation Comm.,(the FWC), which enforces Florida boating statutes testified at the Dumas hearing that the Marco ordinance was illegal. Judge Crown agreed with him. The principals behind this ordinance are mostly gone now, former city att. Yavonovich, city manager Moss, Police Chief Reinke and several of the council members. The bills from Weiss Serota will keep coming in. Incidentally, the city still doesn't have an agreement with the state's attorneys office to prosecute local ordinance violations. I guess they figure Weiss Serota's rate of $215/hr. is a better deal than the states attorney's $60/hr.

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