Dave Dumas on Marco anchoring ordinance
Dave Dumas on anchoring rights
MARCO ISLAND — Enforcing a Marco Island ordinance to restrict anchoring is dragging into its second year of court battles.
Marco Island boater Dave Dumas intentionally violated the city ordinance restricting boats from anchoring within 300 feet of the Island shore and from anchoring more than six days. In 2007, Dumas anchored near the Esplanade seawall for about 48 hours, got the ticket he sought to fight in court and left.
Dumas said his defense attorney, Isles of Capri resident Donald Day, of the Naples-firm Berry, Day & McFee, took on the case free of charge.
Collier County Court Judge Rob Crown threw out the case and the city ordinance in October 2007 on grounds that the city did not have the right to govern anchoring in the waterway because it is governed by the state constitution.
City attorney Dan Abbott, of the Fort Lauderdale based firm Weiss Serota Helfman Pastoriza Cole & Boniske, argued that Crown’s decision wasn’t a final order that could be appealed.
In January, the local appellate court dismissed the city’s appeal of the Collier County Court ruling.
The city is now appealing to the Second District Court to rehear the city appeal that was dismissed last month.
Dumas has criticized the city’s waste of more than $50,000 in taxpayers’ money to pay attorneys fees for an ordinance he believes serves no purpose other than seeming “elitist” and preventing business and tourism.
“From a city stand point, this has no redeeming value whatsoever,” he said.
Not all Islanders agree.
“It would be a tragedy, for less than $5,000, for the city fathers to kill this appeal process after all the work and thousands of dollars spent by many city of Marco taxpayers during the past four years. I find it impossible our councilors would kill this appeal in the ninth inning,” said Dennis Morrissette, co-chairman of the Marco Waterways Organization.
Morrissette and the waterways organization are proponents of the ordinance because of the disturbance Morrissette said is caused by boats anchoring in Factory Bay near his home.
Resident Bill McMullan, also of the waterways organization, said noise, sewage dumping, seawall damage and dragging anchors were also concerns.
“I am very confident that we will prevail in the Second District, and have the Circuit Court appeal reinstated. Moreover, I do not anticipate substantial additional expense to be incurred in the pursuit of that Writ (of Mandamus filed,” Abbott wrote in an e-mail to the Naples Daily News.
City Attorney Alan Gabriel said the first appeal was thrown out on procedural terms for taking too long to file and he hopes the anchoring ordinance will be heard on its merits.
“They did not adjust the merits. If they did, I think we’d be done,” Gabriel said.
Dumas said he believes the city is wasting time and taxpayer money on what may soon become a moot point. Florida Fish and Wildlife Conservation currently enforces the state laws in the waterways. FWC Assistant General Counsel Alan Richard said pending clarifications to Florida Statute 327-60(2) will leave no doubt that cities do not have authority to prohibit anchoring. Richard said he was involved in drafting the 2005 statute and is “very clear about its intent.”
He said the changes may come as soon as October while this latest city appeal may take much longer.
Richard added that the city already has laws to enforce noise, sewage dumping, live aboards and derelict boats.
“These are already crimes. Cuff ‘em and stuff ‘em,” he said.
City Council, City Manager Steve Thompson, Gabriel and Abbott will discuss the case against Dumas, prohibiting public attendance at the closed, executive session 3 p.m. Tuesday before the regular City Council meeting and workshop at 51 Bald Eagle Drive, downstairs from the police station.