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Marco law limiting boat anchoring struck down by Collier judge

By LIAM DILLON (Contact)
Originally published 01:33 p.m., October 26, 2007
Updated 10:05 p.m., October 26, 2007

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A Collier County judge has struck down a Marco Island law that limited boat anchoring in city waterways with a ruling boaters’ rights advocates hope will reverberate across the state.

Dumas

Dumas

In a strongly worded decision, Judge Rob Crown agreed with a Marco Island boater who argued the law was unconstitutional.

Any “local regulation regarding the anchoring of non-live-aboard vessels outside mooring fields is expressly prohibited by state law,” Crown wrote in his decision Thursday. “If (the city) believes there are circumstances that justify 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.”

The legal challenge to Marco’s ordinance began in January when Marco boater Dave Dumas, 65, intentionally broke the law because he said it conflicted with state statutes. The ordinance limited boaters to a maximum six-day anchor at a minimum 300 feet from land. It was first passed in April 2006 after years of acrimony between boaters’ groups and Marco waterfront property owners, who argued for an ordinance based on health, safety and welfare concerns.

The case has attracted national interest from boaters’ rights advocates who regularly protest the various local laws restricting anchoring in Florida.

Dumas, his pro-bono attorney Donald Day and Margaret Podlich, vice president for governmental affairs at BoatUS, an organization with 650,000 members across the country, all hoped the ruling would send a clear message.

“This should put the nail in the coffin to stop this patchwork of ordinances,” Day said.

Podlich echoed Day’s comments.

“I think it will have a broader application,” she said. “I think Marco Island was a test case and many municipalities need to take note of what happened here.”

Marco Island City Manager Bill Moss said the ruling wasn’t entirely surprising given that courts have come down on both sides of the issue for nearly 20 years.

“Our council exercised the legislative power on this issue they thought they had the right to do,” he said. “Other courts have found that was the case.”

Like those of prior courts, Crown’s ruling was a county decision and does not set state precedent, unless it is upheld on appeal. Day said he expected the case to be appealed based on prior statements from Marco government officials.

Marco Island City Councilman Ted Forcht, who voted in favor of the ordinance, supported an appeal and said he intends to ask for a special-called closed council meeting to discuss further strategy.

“I would think we would want some ability to enforce our law until all our appeals are exhausted,” he said.

But Forcht, like other interested parties, are also changing their focus from the local to the state level. Forcht suggested inviting state Rep. Garrett Richter, R-Naples, and state Sen. Burt Saunders, R-Naples, to a City Council meeting to discuss Marco’s concerns.

“We’re a canal community,” Forcht said. “We have some unique problems that maybe the state didn’t foresee.”

Day referenced current discussion among state legislators and regulatory agencies, including the Florida Fish and Wildlife Conservation Commission, to further clarify state rules on the anchoring restrictions.

Those discussions interest Bill McMullan, co-chairman of a Marco organization that lobbied for the city ordinance.

“We need to be there at the state level so the state understands what’s at stake here,” he said. “I just don’t believe the Legislature understands the true meaning of this.”

Back on Marco, Dumas, the boater who violated the ordinance, said he hoped the ruling would unite boaters and property owners to hash out a new ordinance that would meet everyone’s needs. There’s already a base for an ordinance as Crown’s ruling only invalidated the sections of Marco’s ordinance that cover boat anchoring.

“Let us please sit and discuss this and try to understand what the city needs and is also fair to visiting boaters,” Dumas said.

MARCO – DAVID DUMAS ANCHORING CASE

Comments

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So, what does Bill McMullan have to say now?

#1 Posted by ed34145 on October 26, 2007 at 2:01 p.m. (Suggest removal)

So, how much did this frivilous lawsuit cost the Marco taxpayers?

The average citizen would not have taken this case to court, because the average citizen knew that we had little chance of winning.

I guess that I've been right all along, the current city council is less than average. They will prove my point again, when they decide to appeal the judge's decision!

#2 Posted by jockey on October 26, 2007 at 3:02 p.m. (Suggest removal)

I would want anyone anchoring for a weekend in a bay if I lived on one, but if the state says you can, you can. I think most boaters that have boats big enough to live on for a weekend are responsible, if they are not call the floating police.

#3 Posted by tptcolumbusway on October 26, 2007 at 4:01 p.m. (Suggest removal)

How 'bout 30-50 quiet, courteous, environmentally friendly boaters anchor Thanksgiving weekend just off Orange Court?

#4 Posted by SBCMike on October 26, 2007 at 6:35 p.m. (Suggest removal)

How 'bout 30-50 quite, courteous, environmentally friendly boaters anchor just off Orange Court Thanksgiving weekend?

#5 Posted by SBCMike on October 26, 2007 at 6:38 p.m. (Suggest removal)

Thanks to David Dumas and Donald Day for taking the lead to preserve the anchoring rights of all boaters.
If the concil goes into closed session--It seems as if there could be a violation of the Government in the Sunshine if the press is not invited. Please keep your government honest and open.

#6 Posted by thataway4 on October 26, 2007 at 11:18 p.m. (Suggest removal)

Marco was represented ably by Daniel Abbott of the city's law firm Weiss Serota. If they lost at the most political local level of the judiciary, what are their appeal prospects at the District Court of Appeals or Florida Supreme Court level? Slim to none! But Hang the Expense; it's only taxpayers money. This ruling has hit the Marco Ship broadside at the waterline and it is sinking. Moss is jumping ship, city attorney Yovanovich transferred out months ago and Chief Reinke keeps trying to get into a lifeboat. The city has finally lost in court and they can't STAND IT! The three aforementioned city employees were guilty of dereliction of duty in advising the city council they could enact this ordinance!

#7 Posted by maharg on October 26, 2007 at 11:29 p.m. (Suggest removal)

Personal attacks are generally the last resort of intellectual midgets. We appear to have our share on Marco.

#8 Posted by Seymour on October 27, 2007 at 9:33 a.m. (Suggest removal)

TF...Every Florida Coastal city that I have visited has a canal system...Marco Island is unique for a lot of reasons, but canals is not one of them.

Posters...to my knowlege, this was not a Moss issue, it was after the police had recommended a reasonable approach that a few activist got on an adgenda and srirred the pot, and stirred it well, that the council folded and passed something that was doomed even before the State stepped in.

Another episode that has ended in the courts.

Now we should work on a regulation that will stand the test of reasonablness and law.

Dumas...thank you and your supporters...it was well done.

#9 Posted by captnjimbo on October 27, 2007 at 3:12 p.m. (Suggest removal)

Dinghydo2, I certainly agree regarding my "30-50 boat" anchoring comment. I apologize.

#10 Posted by SBCMike on October 27, 2007 at 6:40 p.m. (Suggest removal)

Once again, a judge tells Marco Island's loudmouth, crotchety, arrogant, "Malcontent Minority" to stick it. Nothing could make me happier. Unless these geezers do what they're constantly threatening to do -- move off the island. But we all know this bunch is all talk, no action.

#11 Posted by Eagleeye on October 28, 2007 at 7:42 a.m. (Suggest removal)

I'd like to applaud Judge Crown for his decision regarding the waterways ordinance. His ruling will go down in marine law history as precedent setting. Others should also be commeneded. Mr. Dumas risked arrest by challenging the ordinance. Fellow experienced sailor Lee Oldershaw was on board Dumas' craft to observe when Dumas was arrested by a misguided police department. Word cruiser Herman Diebler, who was a member of the Marco Island Waterways Committee at the time, spoke as a private person and criticized the ordinance. Mr. Diebler was expelled from the committee by the city council at councilor Ted Forcht's request. The officials and experienced sailors of the Sailing Association of Marco Island supported the challenge to the ordinance. Naples attorney Day and his staff gave their time and expertise to Dumas without pay. Former Marco Island investigative reporter Ed Bania was the first to tell the public about the possibility of the ordinance, Dumas' upcoming challenge to it, and the court proceedings. Others in the media followed Mr. Bania's lead and reported the unfolding events. BoatU.S. also informed their more than 650,000 members of the challenge. Many of the brave people mentioned above were criticized and threated by a few rich and powerful Marco Island waterfront landowners, the city council and city officials. Justice prevailed. But there may be more to the story if Marco Island city offficials spend hundreds of thousands of taxpayers' dollars appealing Crown's decision.

#12 Posted by ridelikethewind on October 29, 2007 at 10:55 a.m. (Suggest removal)

It is interesting that eagleye defines a victory by a group of citizens that successfully challanged the council, Moss and the city's attorneys as a victory for the city over the mal contents. Get the picture! The city LOST!! The citizens won!!! This is typical city spin, probably written by Lisa Douglas.

#13 Posted by Oracle on October 29, 2007 at 11:21 a.m. (Suggest removal)

This precedent is beautiful! Maybe it will get the gendarmes off our backs in Gulfport. Mr. Dumas, Mr. Day and Judge Crown, thanks to all of you.

If we don't stand up for what is right and for thousands of years of sea tradition, and not to mention STATE LAW, only the affluent and connected will be able to enjoy the waters.

This ruling also goes to demonstrate there are, actually, a few good sharks left! If needed, Mr. Day, you've topped my list. Great work!

#14 Posted by sailingfree on November 1, 2007 at 4:24 p.m. (Suggest removal)



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