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New Law Gives Property Owners Right to Restrict Beach Access. Flagler Working On Protecting Public’s “Customary Use”

| March 29, 2018

A new Florida law could potentially allow private property owners with beachfront property to put up No Trespassing signs on dry-sand areas of the beach, above the mean high-tide waterline, countering decades of customary use of the beaches--and prohibitions of such signs in Flagler. (© FlaglerLive)

A new Florida law could potentially allow private property owners with beachfront property to put up No Trespassing signs on dry-sand areas of the beach, above the mean high-tide waterline, countering decades of customary use of the beaches–and prohibitions of such signs in Flagler. (© FlaglerLive)

It’s not a rumor, and it’s not an exaggeration. On March 6 and 8 the Florida Senate and the House passed a bill that reverses decades of customary public access to Florida beaches in front of private property. Gov. Rick Scott signed the bill (House Bill 631) this week.


Flagler County government is preparing to pass an ordinance that would seek to preserve the public’s customary use of private sections of beaches. But it’s not a given that the ordinance would always hold sway: the bill doesn’t supplant the state law. It merely gives the county more authority to protect customary use of beaches should the matter end up in court, and it allows the county to make a stand regarding all its beaches without having to take on each beach-front property owner singularly.

The new law allows beachfront property owners—hotels, residential dwellings or others—to restrict access to the “dry sand” area of the beach, or that area above the average high-tide waterline. In effect, that means beach-goers used to lounging, jogging, taking walks or playing in those dry sands could legally be barred from doing so unless they’re, say, guests at the hotel or friends of the property owner.

The new law allows property owners to put up signs or barriers delineating their property from public property—something not currently allowed in Flagler. (Sections of beach below the average high-tide waterline are not affected: those sections remain public property regardless.) The law upends decades, possibly centuries, of legal precedent going to common law allowing public use of beaches.

“If the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption and free from dispute,” the Florida Supreme Court ruled in 1974, “such use as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.”

The new law qualifies that understanding of “customary use” significantly.


“I’m not aware that this kind of legislation exists anywhere else in the nation.”


“I’m not aware that this kind of legislation exists anywhere else in the nation,” says County Attorney Al Hadeed, who is drafting the ordinance protective of public access with Sean Moylan, a paralegal in the county attorney’s office. In Flagler County, “we do not permit walling off of the beach, and we have acted in the past when people have attempted to do that, so we have maintained an open beach.”  

“What they have effectively accomplished is really burdening local government and doing it in such a way that local governments may not be fully aware of the implications of this new statute,” Hadeed said. It creates a whole new procedure, forcing local governments that want to preserve the public’s customary use of beaches to sue beachfront owners. For counties like Flagler, that has serious implications since the county has historically forbidden the sectioning off or enclosure of beaches, and because the designation of State Road A1A as a scenic byway rested, in part, on the open beaches and multiple access points along the way.

The bill is actually about a lot more than beach access. The beach access provision is a minor appendage, which helped sail the bill through with little attention. It mostly deals with what’s called “ejectment,” an arcane legal concept that addresses property rights and that the Legislature had to clarify, because existing law was resulting in too much litigation. It did so. But it also added the unrelated matter of restricting beach access.

The original version of the bill that passed the House–co-sponsored by Reps. Katie Edwards-Walpole, a Sunrise Democrat, and Rick Roth, a Palm Beach Republican–would have made it very difficult for counties like Flagler to fight the new law. Any property owner up and down the coast could have walled off his or her property. But to re-establish customary use of the beach for public purposes, the county would have had to sue every single one of its beach-front property owners to prove its case, and to have evidence showing that the public had used those areas of the beach customarily. It would have been a daunting, almost impossible burden to meet.

Nevertheless, that’s the version that initially passed the Florida House. Paul Renner, Flagler’s representative, voted for it as it passed on Feb. 14, 92-14.

al hadeed

County Attorney Al Hadeed. (© FlaglerLive)

Coastal county and city officials panicked: the bill was moving forward with little opposition and almost no public attention. There was a grandfather provision in the bill, but it would have favored local governments with ordinances protective of customary use of beaches in place as of 2016. Flagler County did not have such a protective ordinance. As the bill made its way to the Senate, local officials lobbied hard to add another grandfather clause—that one giving local governments until July 1, 2018, to pass ordinances that positions them in such a way as to more easily and systematically argue for customary use of beaches before a judge.

That provision made it into the Senate version, and the Senate passed the bill, 29-7, on March 6, with Sen. Travis Hutson, who represents Flagler, among the seven dissenting votes.  The amended version of the bill went back to the House, which passed it on March 8, 95-17, Renner still in favor.

Sometime in the coming weeks the Flagler County Commission will hold a workshop on the proposed ordinance that takes advantage of that added grandfather provision. The commission will, then very likely pass that ordinance by July 1. Assuming it passes, it will then be armed with a legal way to address the possibility that any private property owner invokes private restrictions on sections of beach customarily used by the public. The measure, Moylan says, “says the county can use customary use as a defense if any beachfront owner were trying to challenge our ordinance. We can use that doctrine to back up our ordinance in a courtroom, whereas counties and cities that don’t pass an ordinance would be stuck with a parcel by parcel need to sue everybody along the coastline” to preserve the same right.

The movement toward what became that unusual law this month started in Walton County—the only county to have had an ongoing issue between private property owners and beach-goers. Walton County had an ordinance banning the sort of signs that say “Private Property” on the beach proper. Its ordinance stated explicitly that the “public’s long-standing customary use of the dry sand areas of all of the beaches in the County for recreational purposes is hereby recognized and protected.”  

Lionel and Tammy Alford sued in federal court in 2016. The court upheld the county’s right to pass a customary-use ordinance but left the door open for a challenge on property-rights grounds. Edward and Delanie Goodwin of Walton County sued the following year, citing the First and Fifth amendments. The lawsuit was dismissed (“the issue is best fit for determination first by the state court”). There was also an inconclusive Attorney General opinion that sought to establish a middle ground without adding too much clarity to the issue.

 “These court decisions and the Attorney General opinion,” a legislative analysis of the new law concluded, “show that local officials, municipalities, and private property owners have struggled to determine the scope of local authority regarding customary use ordinances and determining who may affect the property rights of private property owners through the common law doctrine of customary use.”

The new law notwithstanding, litigation on the issue appears nowhere near done.

After this article appeared, a commenter suggested that residents in the Hammock were behind the bill. “Of course not true,” Hadeed said in an email. “No one likely knew during the session. We never received an inquiry on it and had no reason to alert anyone since it didn’t even get out of the starting gate in the Senate until the last week of session. On learning that it was moving, we voiced our objection and sought the last minute amendment to the bill. This was with the BCC’s support.” BCC is the acronym for the Board of County Commissioners.

 

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49 Responses for “New Law Gives Property Owners Right to Restrict Beach Access. Flagler Working On Protecting Public’s “Customary Use””

  1. PCer says:

    Typical GOP upholding the needs and wants of the 1%.

  2. I'm settin up an umbrella says:

    Am I the only one who finds this clearly unconstitutional? A property owners control should end at the property line. And how suspish that this bill was able to so expediently fly through the government without the public knowing? Hmmm.. Well, all I can say is it’s not going to stop me from going to the beach.

  3. Robert Lewis says:

    Isn’t this tibid interesting… The Hammock strikes again. The rich wall of Making America Great Agaib is being built to prevent the common folk from going to public beaches. First this group builds a toll and charges us to come on over. Then they fight right restrict rentals for family reunions. Now they want to close the beach down. Public land sold to the highest bidder and the Hammock is finally its own private island.

  4. Yellowstone says:

    I experienced this same thing in Key Biscayne. Eventually, the city installed key accessed gates on the few public right-aways. That didn’t work so the bridge from Miami to the isalnd became a toll bridge.

    Hang on folks, you ain’t seen nothing yet!

    In passing, suppose those ‘that gots’ pay back the county for the beach restoration performed on their ‘private do not trespass beach’?

  5. Stacey says:

    So if that’s the case the property owner should also be responsible for maintaining dunes and erosion. That would save a lot of tax money. That’s only fair.

  6. Chris Sezonov says:

    In order to entice Florida to join the Union, the federal government gave the state of Florida full rights and control over its coastal and other waters, with the express condition that public access to those waterway not be impeded.
    In Flagler Beach most of properties have littoral rights, some don’t; per wiki “An owner whose property abuts tidal waters(i.e. oceanfront) owns the land to the mean low water line or 100 rods below mean high water, whichever is less. The land between low water and high water is reserved for the use of the public by state law and is regulated by the state.”
    The properties were divided up long before A1A so, an owner’s lot can have two separate parcels, while others are owned by the city or totally different owners.
    The taxpayers are spending a great deal of money rebuilding the beach and the dunes. Any owner that contemplates in isolating their property and calling it private, should then be billed for the reclaiming costs.

  7. mark101 says:

    “”allows beachfront property owners—hotels, residential dwellings or others—to restrict access to the “dry sand” area of the beach, or that area above the average high-tide waterline”” Is the county going to provide residents with a land survey to outline these average high water tide waterlines ?

    And who is going to enforce this ?

  8. Steve Robinson says:

    Actually, this is not “The Hammock Strikes Again.” It is, in fact, a relative handful of wealthy dune dwellers in the Hammock and elsewhere in Florida who by virtue of their checkbooks essentially control our government (duh). The truth is that most Hammock dwellers don’t own oceanfront property, and are disproportionately affected by this as most of their property deeds grant them unfettered beach access. Not to inject partisan politics into this (actually, I think I will), but I wonder how many of those now expressing outrage at this law voted for these Republicans, locally and nationally, thinking they were going to look out for the interests of average folks. Surprise!

  9. Ben says:

    So everyone that has property on the beach 🏖- their property taxes are going up right if you give them more space then they got to pay 💰 for it YES
    That’s about as bad as the tree 🌲 tax in WV they tried to pass
    So if your a contractor you go to someone’s house or commercial property that has sand in their back yard you charge more ?

  10. Sue says:

    Thank you Stacey, well said!

  11. Pogo says:

    @Vote the Republican party out

    We do not inherit the earth from our ancestors; we borrow it from our children.

    THE ROMAN LAW OF NATURE: PROTECTING THE SEA, SEASHORE AND SAND
    http://coastalcare.org/2012/06/the-roman-law-of-nature-protecting-the-sea-seashore-and-sand/

  12. Merrill Shapiro says:

    Thanks for pointing out what a menace Paul Renner is to the well-being of our community.

  13. LuLu says:

    If they want to claim that part of the beach as their property then they should have to pay to maintain their private beach.

  14. Marlee says:

    The Invisible Wall…..
    I always bragged about Florida beaches being open for the public.

  15. Peaches McGee says:

    The rich will always prevail.

  16. Deborah says:

    You might own the property your home sets on. But the beach belongs to the the public. Unconstitutional in every way.

  17. Joe says:

    Just to set the record straight, HB 631 was proposed by Democratic state Rep Katie Edwards, just thought it should be mentioned since it was left out of the article.

    • FlaglerLive says:

      The bill was introduced by Edwards, a Democrat, and Rick Roth, a Republican. That detail was just added.

  18. John Brady says:

    Agree completely with Stacey and in addition not one penny of tax money should be spent to repair any damage caused by any natural or unnatural cause. I would even say no to fire protection accept as needed to save lives. Why should public dollars be spent when these owners deny access to what should be public domain.

    Voters please remember this is a republican initiative and you can repay in November.

  19. palmcoaster says:

    GOP geared only to give more wealth to the 1% and taking away from the rest of us.

  20. palmcoaster says:

    Stacey you are so right…we have to pay for restoration after any hurricane but we are restricted from the use? Renner voted for this shameful bill? Out with him! Lets change Tallahassee legislators in 2018 mid elections and reverse this bill!

  21. Richard says:

    Property owners are only allowed to protect and maintain the land that they own based on their land survey map. Beyond that is public domain. If these ignorant law makers give them the right to go beyond those borders then it should be mandatory to annex the increased land size into their deed, pay taxes on the increase land size and be responsible for paying for any rebuilding of the dunes. Sounds to me like a win-win situation.

  22. capt says:

    @ stacy, these homeowners already maintain the dune areas, picking up trash left by people that could careless of the beach we all use. I mean these non residents of the area, come in, smoke, leave their cig butts , bottles, and even beer cans and paper on the beach. You wonder why, its because these people don’t care. And the Hammock owners paid a considerable amount to have their dune restored in front of their area long before the county stepped in, not to mention a few Marineland Acres owners did the same thing after Mathew. .

  23. smarterthanmost says:

    There are private and public beaches for a reason. For all of you short-sighted people, do you let people camp out in your back yard, of course you don’t. If the state, or the county wants all beaches to be public, buy them up.

  24. tulip says:

    I agree what someone said that the home and land should end at the property line. The ocean is there for everyone to enjoy and have fun and bring their kids. If people want to live on the ocean that’s fine, but I think it’s mean and unethical to just take part of the beach as private property for themselves and keep others away.

    The taxpayers all contribute to maintaining the beach, and homeowners that don’t live on the water have to pay a higher rate on their home insurance because people are allowed to build in risky areas and we have to help them out with the money after a disaster because they don’t have high enough insurance. Not fair. If someone wants to live on risky property then they should foot the entire bill themselves. The rich people are taking too many things away from the average person.

  25. Jay says:

    This shouldn’t be a surprise. It was what about 20 years ago the elite banned beach driving in Flagler to restrict general access to the hammock dunes beaches. Now they are going to restrict it even further by not allowing anyone to walk to them.

  26. Ross says:

    On the sections of beach where the county has rebuilt the dune, there is now a considerable problem with people walking along and hanging out on the very top of the dune. Somehow people have the notion that this is OK because it’s dry sand and part of the beach, but it’s not at all good for the new dune. To start with, it’s going to keep any vegetation from growing on it.

  27. Just the truth says:

    NJ and California tried this and it didn’t fly.

  28. Ben Hogarth says:

    I’d like to say that I agree with Mr. Hadeed and Moylan that passing a new ordinance at this juncture, would be the only viable defense for the County in future customary-use disputes. Unfortunately, as I read the bill as adopted (HB 631), the entire burden of proof is on the local government moving forward.

    Additionally, it appears to me that the language in the bill further allows private landowners to potentially dispute existing public access and customary uses with consideration that each hearing must be conducted as a new case/proceeding (de novo) consisting of an entirely new findings of facts and evidence.

    Furthermore, while the U.S. Supreme Court continues to weigh the balance between private property (littoral/riparian) rights and customary-use (Public Trust) doctrine – an established common law dating back to antiquity (Rome)… local governments are now left by the State Legislature with no recourse for litigious defense except to pass more concise and pronounced ordinances.

    All this effort in hope that a circuit court may find such historical use within the scope of some form a ‘rational public nexus.’ I’m sure private attorney’s are loving the potential future case loads, but from a public service perspective – this is a nightmare.

    In my personal opinion, both politically relevant and in opposition to special rights activism – this is of course, nothing new for the Republican agenda in the State. Providing wealthy landowners with more control over land and areas is always their top priority. While the rights of private owners should always be considered, it has been a common practice for more than 2 millennia that the oceans, the beaches, and other waterways belong to the PEOPLE.

    Period.

  29. december says:

    IMO the beach belongs to ALL of us, it is my understanding, and I could be wrong its part of the National Seashore and is suppose to be open to all. If the people who own property over looking the ocean want to claim it as their own personal beach, hope that will increase their property taxes accordingly and also as others mentioned make them responsible for repairing the beach erosion on their private beach (if I can’t walk on it, I shouldn’t be paying for the upkeep of it) what in the world is wrong with elected officials who came up with this idea, approved it and signed it.

  30. Steve Robinson says:

    Not that it will make any difference, but folks need to swamp Renner with email. http://www.myfloridahouse.gov/Sections/Representatives/emailrepresentative.aspx?MemberId=4619&SessionId=80

  31. L H says:

    Time for Renner to go back to private practice since he does NOT represent the wants, needs and desires of his constituents. Time to ELECT a person who cares about his/her constituents. Everyone, start looking real closely at ADAM MORLEY to replace a Renner who only cares about his pockets.

  32. Richard says:

    One last point I would like to make on this issue is that the “swamp” needs to be drained at ALL levels of government not just the federal level. Vote people into office that will walk their talk and deliver what the people who had voted them into office wanted and need.

  33. Lou says:

    It makes no difference if it is a DEM or a REP, they represent no the public but special interests. American democracy at it’s best.

  34. Flats says:

    I see a lot of Stand Your Ground Activities in the future. Maybe someone needs to ask our “All Most Famous Sheriff” what his instructions will be. to Deputies who field calls from upset homeowners. Maybe the FCSO will have to purchase 15 new copters to respond to homeowners calls.

  35. George Orphan says:

    When their homes get blown away by the next hurricanes; use no public funds to rebuild them or to restore the sand on the beaches. Let Mother Nature decide where the beach is.

  36. Ryan says:

    Then there should be a counter ordinance that gives immunity from criminal charges for walking on the beach there.

  37. Jane Gentile-Youd says:

    Hey Renner –
    Whatcha gonna do when anti American foreigners start buying up all that beachfront land and prohibit anyone other than their paisano from entering? Ever hear of Normandy? Until very recently Mexico prohibited all non Mexicans from buying oceanfront property… to protect their country from foreign invasion.
    Renner has proven to be either a jackass or carpetbagger or both

  38. Duncan says:

    As a beach front property owner, I think there is much over reaction here and not much to see. I agree that the county should do what it needs to in order to protect access to the beaches. However, I don’t think you are going to find any property owners that are going to try to limit access. Besides, the mean high tide line for Flagler beaches is practically up to the dunes. themselves. Since no one should be disturbing the dunes, it seems to be a mute point.

  39. palmcoastpioneers says:

    ‘ An approach to a New City: Palm Coast ‘ – 1972 Dr. J. Norman Young, Father of Palm Coast Project

    Environmental Affairs Publication:

    Page 129:

    Palm Coast will be neither a “sudden city’ nor an ‘instant’ one but will grow in accordance with a pre-planned program, no matter whether it flourishes twenty, thirty, or forty years from now. Palm Coast is a strip of land thirty miles long at its longest, ten miles wide at its widest, covering approximately 160 square miles. It is a fact that under the controls we will institute, despite its being larger in extent than Detroit or Philadelphia, it will have a density of say, Beverly Hills, California. But more on this later.—–> Palm Coast has about six miles of ocean front, approximately twenty miles on the Intracoastal Waterway, and will have significant man made water areas.<—– Again, these will be reviewed in the main body of the text.
    Now to a brief description of the terrain. Like other areas along the east coast of Florida, the property was formed primarily by sand dunes that have been build up by the interaction of winds, waves, tidal cycles, and ocean currents. This continued accretion of land as a repetitive process has caused the creation of lagoons between the new dune and the existing land mass. It is from these lagoon that the present salt water lagoons and marshlands evolved.
    Page 129
    Should you want to read the full publication: http://palmcoastcorehomes.tripod.com/id50.html

  40. Flats says:

    Go to the FG Property Appraisers website and lookup all the “mapped” property fronting the ocean. The number that have values of between $2,500 and $5,000. will amaze you. A lot of the large parcels (with lot boundary lines), sized properties, (Hammock Dunes) don’t show a S value, so how are they taxed?

  41. Stan says:

    I wonder what beach front home owning Democratic Lawyer got this law passed ? Let’s pass a bill where our tax money will not be used to restore their private beach fronts and storm damaged property!!!

  42. Anonymous says:

    @palmcoastpioneers says

    Palm Coast has NO Ocean frontage it stops at the intercoastal waterway.

  43. mark101 says:

    @ Anonymous says,
    interesting, please provide a link to that information

  44. Rhonda says:

    I live in the Hammock….of course we believe the beaches should be accessible to all!

    No one here knew anything about this law – believe me, I am opposed to unfettered short-term rentals in neighborhoods zoned residential, and have worked on this for hours/week the past several years. This law about the beach was never on anyone’s radar!! That is why it’s such a shock.

    This is another ploy by the legislators to give the businesses (think hotels that are developed along the water) what they want – no individual homeowner wants to limit access to the ocean.

    If you ever watched Twilight Zone, you might remember the episode “The Monsters are Due on Maple Street.” The premise is that the “monsters” turned neighbor against neighbor by making some neighbors feel others were “special.”

    In this case, the monsters are the legislators in the pockets of big business. Let’s not let them do this.

    Renner, where are you?

  45. Dave says:

    No one actually owns anything. You people jus write words on paper with signitures, and think it means something. Its not real. You trade land you never owned for rectangular green paper and pretend this has significance. You cant own earth.

  46. Born and Raised Here says:

    So I would have to remove that old boat of mine that wrecked 60 years ago, and washed ashore on some rich guys property because it’s an eyesore and now on his property ?

  47. Ben Hogarth says:

    I want to reply to Rhonda who referred to legislators as “monsters” and asked where Renner was…

    He is singing the Republican version of “This Land is Your Land”

    It goes like this: “This land is MY land”

    End of song.

    *Please remember this when you vote later this year. I realize we get the occasional Democrat who sponsors this kind of legislation, but don’t forget that Democrats are outnumbered 2 to 1 in the legislature and have to cut terrible deals like this to get something else they want. And I wouldn’t be surprised if the language that changed the rule in question was added on as an amendment later on by a Republican. That’s how it starts – a simple fix to conform to a court ruling and the GOP manipulates the language for another purpose entirely.*

  48. HCRC says:

    Just want to add our names to the list of the “out with Renner group” and express our objection to the idea of private beaches for beachfront property owners. What happens to the turtles. Will they be trespassing. Also, wanted to mention that Travis Hutson (a Republican) voted against this law. So, vote Republican, just don’t vote for Renner.

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