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.
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.