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Law-breaking Boaters challenge anchorage

David Dumas anchored his 42-foot Kadey-Krogen for three days off Marco Island, Fla., before an officer cited him for illegal anchoring.

David Dumas anchored his 42-foot Kadey-Krogen for three days off Marco Island, Fla., before an officer cited him for illegal anchoring.

The 65-year-old MarcoIsland resident had violated a local ordinance that prohibits boats from anchoring more than 12 hours within 300 feet of shore. Dumas had been on the hook on SmokehouseBay for 18 hours when an officer warned him he would have to move his boat away from The Esplanade, Marco’s posh residential and commercial hub. Dumas refused to move Kinship, his 7-year-old trawler.

Six hours later the officer issued him a warning ticket. The next morning, Jan. 18, after 36 hours on the hook, Dumas was cited with a misdemeanor violation of the anchoring ordinance. If convicted he faces a $500 fine and six months in jail — not a happy prospect for the retired Ford Motor Company engineer.

Dumas and others who are rallying around him in fighting city hall aren’t firebrands. They don’t like breaking the law. Dumas says it was a necessary act of civil disobedience.

“When you’re a mariner you want to stay out of trouble, not get into anybody’s face and just enjoy yourself,” he says. “I was scared. I had a knot in my stomach.” But, he says, this was a way to challenge the law in court.

Dumas, a core group of three other local cruisers — Lee Oldershaw, Herman Diebler and Karl Henning — and members of the Sailing Association of Marco Island are mounting the challenge with the pro bono help of attorney Donald P. Day.

Dumas has cruised the Intracoastal Waterway, visited Chesapeake Bay and Long Island Sound, the Bahamas, Florida Keys and Mexico’s Isla Mujeres. He and the other boatmen — all retirees — understand that cruisers need anchorages where they can stay for extended periods while they provision, change out crew, find refuge from storms or wait for a good weather window.

He says MarcoIsland is the last good place to stop before the Keys for cruisers headed south. The MarcoRiver entrance is deep and wide, and easy to get into. “Once you leave Marco, you’re basically exposed. You don’t want to take that trip if there’s bad weather,” he says. Besides keeping anchored boats away from shore, the Marco ordinance sets a 72-hour anchoring limit; after that, anchor-outs must show a head pumpout receipt and apply for a permit to stay another three days.

The MarcoIsland anchoring issue came to a head when the city commission adopted the ordinance a year ago July after 2-1/2 years of discussion. Diebler — a member of the city’s waterways advisory committee until he says he was bumped off for sounding off about anchoring in the local press — says the cruisers were willing to compromise and let the city regulate anchoring if it agreed to let visiting boaters anchor off Marco for 15 days out of 30.

“We knew the ordinance was going to be illegal,” Diebler says. “But we didn’t think we had to challenge it because this was a reasonable approach.” But he says a well-funded anti-anchoring campaign mobilized waterfront residents using scare tactics that warned them that anchor-outs would dump sewerage in their waters, carry on with loud parties, invade their privacy, even swim in their pools and watch their big-screen TV with binoculars.

“They turned the citizens of this town against visiting boaters,” Diebler says, even though a check of police records uncovered no citizen complaints about any of these kinds of problems.

The principals involved in this legal challenge have homes on the water and backyard docks, so it isn’t for their particular benefit, Diebler says. “This is an issue for Florida boaters, if not U.S. boaters,” he says. “It’s a stand for boaters in general and for boaters’ rights.”

Dumas and his supporters expect that the court will find that Marco’s anchoring ordinance is preempted by a state law that protects the rights of vessels in navigation, including those that cruise. And they hope that this could be the test case that puts many Florida municipalities on notice that their anchorage laws are unenforceable.

Florida Statute 327.60, amended in 2006 to clarify its language, says local governments can prohibit or restrict mooring or anchoring of floating structures (houseboats without motors, for instance) and liveaboard vessels, that is, boats used solely as residences (people live on them, they never go anywhere on them and don’t have the ability at the moment to use them for transportation) and boats that are legal residences (they are listed on a driver’s license or voting registration card as someone’s home). Local governments also can regulate vessels that tie up to moorings in state-permitted mooring fields. However, cities and counties are prohibited by this law from regulating anchorage of non-liveaboard vessels in navigation, except in the mooring fields.

What is a non-liveaboard vessel in navigation?

Capt. Alan Richard, the Florida Fish and Wildlife Conservation Commission’s assistant general counsel, cites cases in which judges have said boats going somewhere, waiting to go somewhere or just sitting and capable of going somewhere are “vessels in navigation.” By that standard, most cruising boats whose owners have a second home on land are non-liveaboard vessels in navigation. A couple arrives on their boat and anchors out. “[They] want to be at anchor for 12 hours, 12 days or 12 weeks,” Richard says. “They are going sightseeing. They are using their boat as a means of transportation. It is capable of being used as transportation. It is not a vessel out of navigation. It is a vessel in navigation.”

According to the Florida law, the town is prohibited from regulating how and where these people anchor, he says.

Yet there are many towns in Florida with anchorage ordinances. Vero Beach prohibits anchoring more than 12 hours except in the Municipal Marina mooring field. Fort Lauderdale allows anchoring in its waters for just 24 hours, except in an emergency. Naples and HighlandBeach prohibit all anchoring. Boca Raton doesn’t allow commercial vessels to anchor overnight between 9 p.m. and 6 a.m.; pleasure boats can anchor in its waters up to 72 hours. Stuart allows anchoring for 10 consecutive days, Miami Beach seven of 30 days.

Miami Beach’s ordinance says anchored boats “have a deleterious effect upon the health, safety and welfare of the residents of the city in that they potentially serve as a source for pollution and contamination through discharge of human waste as well as garbage, refuse, debris, oil and other obnoxiousproducts; constitute aesthetic pollution, being unsightly and interfering with views and enjoyment by the public of the beautiful vistas of Biscayne Bay; constitute nuisance and invasions of the privacy of homeowners …; constitute a threat to the safety, health and welfare … through the unregulated activity upon and aboard such watercraft, and numerous other problems and disadvantages which adversely affect the quality of life.”

“What’s surprising is you don’t have more people challenging these anchoring ordinances,” Richard says.

FWC sponsored six anchoring workshops around the state — in Stuart, the Florida Keys, Tampa, Fort Meyer, Destin and St. Augustine — this spring to gather public comments about what Florida should do about anchoring.

“It’s a growth-management issue,” says Maj. Paul Ouelette, head of Florida’s Office of Boating and Waterways. And it is a complex issue. Summarizing his findings, he says loss of public marinas and affordable boat storage is pushing more boats out on the hook on a permanent or semi-permanent basis. This results in the abandonment of more boats and creation of more derelicts — public nuisances, especially after hurricanes. The soaring cost of waterfront and the enormous taxes waterfront homeowners pay has given them a sense of entitlement to private “backyard” waters — without boats at anchor to intrude on their view, their privacy or their security.

Cruisers have a whole different set of concerns. They need anchorage for safety, convenience, enjoyment and provisioning, especially in light of the cost of boat slips. Cruisers complain about a lack of uniformity in local anchorage rules, along the ICW especially, Ouelette says. Local governments, meanwhile, claim the state law is vague and subject to wide interpretation.

Because of political considerations they want the latitude to decide anchoring issues locally. On top of that, many city commissioners and waterfront property owners just don’t understand how important anchorages are to cruising boats — vessels in navigation. Others among them think that traditional definitions of “vessel in navigation” are archaic and need to be changed. And they don’t think vessels in navigation should have carte blanche access to local waters but should be subject to rules that answer this question: How long is too long for a boat to be in a public anchorage?

“Local governments have to deal with local people that elect them,” Ouelette says. And many who own waterfront want anchorage laws.

FWC has been encouraging cities and towns to establish managed moorings with amenities to attract boaters and defuse the conflicts between anchor-outs and property owners, and better manage such problems as pollution, derelicts and unsafe anchorage practices.

Ouelette plans to make recommendations to FWC commissioners at their June meeting in Melbourne. Meanwhile, the Marco case grinds on.

A CollierCounty circuit court judge was expected to set a trial date June 7. Dumas’ attorney will ask the judge to dismiss the case and declare the anchoring ordinance unconstitutional, says Diebler.

Oldershaw hopes that justice will be swift and the decision favorable so he and his friends can get back to a more normal routine.

“We’re just a bunch of old, retired guys who like to sit back and gab and watch big-screen TV,” he says. “We didn’t want to challenge the city fathers on this.” But he says it is important that they have.

“To have local municipalities deciding when you need to set sail without consideration of the condition of the vessel or the suitability of the weather or the capacity of the crew is usurping the command authority of the master of the vessel,” he says.