- Transcript of the (June 15, 2009) closed meeting of Marco City Council regarding the anchoring case against Dave Dumas.
- Transcript of the (Nov. 5, 2007) closed meeting of Marco City Council regarding the anchoring case against Dave Dumas.
- Transcript of the (Sept. 4, 2007) closed meeting of Marco City Council regarding the anchoring case against Dave Dumas.
- Transcripts of the (Sept. 25, 2007 and Feb. 17, 2009) closed meetings of Marco City Council regarding the anchoring case against Dave Dumas.
Studio 55: Studio 55: Tuesday, October 30th, 2007 - Inside the Story
Liam Dillon's interview with Marco Island boater ...
A new issue is rising to the surface after the sinking of Marco Island’s ordinance which attempted to restrict boat anchoring before being deemed unconstitutional.
What started out as an issue of boaters rights has now raised questions about Sunshine Law violations. Recently obtained transcripts from behind-closed door meetings held by the Marco Island City Council show city attorneys warned council members about violating the state’s open meeting and public record laws.
The entire issue began in January 2007 when Marco residents Lee Oldershaw and Dave Dumas anchored the boat Kinship in Smokehouse Bay, purposefully violating the portion of the city’s ordinance that restricted boat anchoring to no closer than 300 feet from a seawall and for no more than 12 hours.
Boating rights organizations and advocates rallied behind Dumas to protect boaters statewide from such laws, eventually deeming similar ordinances in large cities throughout the state to be likewise unconstitutional.
Transcripts from several closed-door meetings, which the public and press were not privy to until recently, reveal that early in the two-year battle, city officials and attorneys were aware that the portion of the ordinance restricting how long the boat was anchored was unconstitutional and would be difficult and expensive to defend.
Nonetheless, the city spent at least $60,000, according to early estimates, fighting the case.
City Attorney Alan Gabriel advised council members in 2007: “Our direction would be to pull ourselves out of this case as readily as possible.”
However, City Council hesitated to end the case because they said they didn’t want Dumas to win, they wanted to defend all city ordinances and they wanted to support a political action committee, Marco Waterways Organization, which council members said had given the city money to defend the ordinance.
In a closed-door meeting held in November 2007, City Council discussed why, despite their attorneys advice that they had less than a 50 percent chance of winning, they wanted to proceed anyway.
City Councilman Rob Popoff started the conversation with “All of a sudden we turn Dave Dumas into a ... ”
Councilman Chuck Kiester finished his sentence: “Folk hero.”
To which Councilman Bill Trotter said: “He already is.”
The typed transcripts of five closed-door meetings held over the years reveal that City Council and attorneys were advised that certain actions they were planning to partake in would violate public records laws.
The late Glenn Tucker, a city councilman at the time, who adamantly opposed the anchoring ordinance, gave the following advice to assistant city attorney Dan Abbott, of the Weiss-Serota law firm: “You ought to contact Dennis Morrissette or whichever one of the wackos (members of the Marco Waterways Organization) you want to contact and then discuss it with individual members and then we ought to bring it up for a decision.”
Councilman Ted Forcht responds: “That’s a city in Florida too, isn’t it?”
Then-Marco City Manager Bill Moss, who is now the Naples city manager, asked “Can we strike that?”
Tucker responded: “No. I don’t give a darn.”
The city attorney advised: “If it loses its confidentiality, we would have then been deemed to have been meeting outside of the sunshine, so I wouldn’t ... I wouldn’t tell anyone what we’ve said here.”
According to the transcripts, council members directed attorneys what to discuss with members of the Marco Waterways Organization, the committee formed by Morrisette and co-chaired by Bill McMullan.
Although city attorneys Gabriel and Abbott both advised City Council in November 2007 that the transcripts would then have to become immediately open to the public, the transcripts were not made public until August 2009.
As for the anchoring ordinance, a change in the Florida statute signed by Gov. Charlie Crist on May 27, 2009, put the issue to a close. The drafter of the statute, Florida Fish and Wildlife Commission attorney Alan Richard, had said the intent was always to prohibit local governments from regulating anchoring other than anchoring in mooring fields or anchoring of live-aboard houseboats, and the change in May would clarify that for any local government which questioned it.
“When the City Council adopted this ordinance (in 2006), I don’t think there was anybody in the room that did not think that we would then be legally challenged,” Moss said in a closed session with City Council in 2007.
Gabriel advised council this summer that the changes in language to the statute, which took effect in part in July and will take effect fully in October, would remove any question.
“The ordinance would be finally deemed invalid,” Gabriel said in the closed session.
With that, coastal communities and cities such as Miami Beach, Sarasota, and others throughout the state, could no longer enact ordinances of their own and boaters would be able to follow consistent, statewide regulations on anchoring.