Marco Island appeals to higher court on city's anchor ordinance dismissal

Two year battle to enforce Island anchoring ordinance continues with closed Council session Tuesday

Dave Dumas on Marco anchoring ordinance

Dave Dumas on anchoring rights

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Dumas

Dumas

— 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.

See court filings in left sidebar and a video interview with defendant Dave Dumas

© 2009 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 7

maharg writes:

A government spurned by it's own courts is a sorry spectacle. The State of Florida and it's courts does not like it's laws violated whether by individuals or local governments. A crime was committed here, not by Dumas but by the government of Marco Island. All in an effort to privatize state waters for the benefit of a few wealthy citizens.
The appellate court ruled that all judicial deliberation was complete on Oct. 25, 2007 and the city's attorneys have egg on their faces for failing to meet the appeal filing deadline.
I do agree with Mr. Gabriel that if the appeal was heard, this case would be over; lost by the city.

liberator100 writes:

"All in an effort to privatize state waters for the benefit of a few wealthy citizens." Sounds like class warfare to me!

fatiguedelavie writes:

Morisette is classic example of how money rules over justice.

He inherits his daddy's money, so now he's a respected citizen.

Dennis the plumber is actually just a blubbering idiot. Shame on you Marco for letting him bully you around.

artrules writes:

Couldn't agree more with #3, we witnessed the court proceedings and Morisette on the stand.. he is indeed a "blubbering idiot". If it weren't for him holding the purse strings I believe this anchoring issue would never have been an "issue" at all.

JohninMarco writes:

Well I guess the city has money to burn by continuing the legal costs of this fiasco.

marcobelle writes:

Read the City Manager's Report today. All revenue's are coming in less (isn't that a surprise) and we still spend on pet projects and appeal a law that is absolutely meaningless. No one is dumping their waste in our waters and no one is sticking around for any length of time. Boaters probably pull in and find out that Marco Island is no longer a friendly or fun place to use as a destination.

billharris writes:

This article doesn't do this very important issue justice. If you are a boater, you should really get to know about this Marco ordinance that has and is getting more attention from boaters and the marine industry nation-wide. Just do a search (at top) and read all of Ed Bania's articles beginning with "Legality of waterways ordinance will be tested," December 15, 2006 thru "Motion filed to declare waterways ordinance unconstitutional," April 26, 2007.
Bill Harris

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