Behind Scott’s Executive Order Protecting Public Beach Access: New Law’s Confusing Signals

By Nancy Smith

In an executive order issued Thursday, Gov. Rick Scott called on counties not to limit the public’s access to beaches, and he directed the Department of Environmental Protection to make sure it happens.

Executive Order 18-202 is all about “confusion” over HB 631, sponsored by Sen. Kathleen Passidomo, R-Naples, and Rep. Katie Edwards-Walpole, D-Plantation. The bill passed the Florida Legislature with an overwhelming bipartisan majority and the governor signed it in March.

“Florida is home to the world’s best beaches, and every Floridian and visitor has the right to fully enjoy our state’s natural resources,” Scott said. “Florida beaches belong to all of us, and people from across the world visit Florida because of them — and we are going to keep it that way.

“Last session, HB 631 was passed with overwhelming support from both Democrats and Republicans. Unfortunately, the legislation has now created considerable confusion and some have even interpreted it as restricting beach access. I’m committed to keeping our beaches open to the public and this executive order makes this commitment clear.

“Today, I am ordering the Department of Environmental Protection to do everything in their power to advocate to keep our beaches open and public. Also, I am putting a moratorium on any new state regulation that could inhibit public beach access and also urging local government officials to take similar steps to protect Floridians’ access to the beach. Government’s job is to help solve problems, and in Florida, when there is an issue or confusion surrounding legislation, we take action to address it. Florida is the most beautiful state in the nation. We have hundreds of miles of pristine coastline and we are known for having the best beaches across the world. We absolutely cannot do anything that changes that.”

Here is the action Scott’s executive order takes to protect public beach access:

1. It imposes a moratorium on executive state agencies adopting any rule or restriction to inhibit the public’s access to Florida’s beaches, unless there is a clear risk to public safety;

2. It directs the Department of Environmental Protection (DEP) to serve as an advocate for the public’s right to public beach access. This includes establishing an online reporting tool so Floridians with concerns about beach access can provide input. DEP will compile this input and submit a report to the Florida Legislature and the governor before the next legislative session. DEP will also serve as a liaison to local governments to ensure the public’s right to access the beach is protected;

3. It urges all local government entities to not adopt any rule or ordinance that would restrict or eliminate the public’s access to Florida’s beaches. The governor is calling on every county in Florida to not take any action that limits access to beaches; and

4. It urges state attorneys in Florida to protect Floridians’ constitutional right to access the beach.

Let’s be honest. The governor didn’t have to issue this order. He did it because people didn’t understand the new law, they were making him the fall guy and he needed to make sure his and the bill’s intentions are perfectly clear to Floridians. [Flagler County passed a customary use ordinance last month: see details here.]

A governor doesn’t write legislation. He doesn’t get to amend or change anything presented to him in a bill. But he is the head of state, and as such, political controversies invariably come back to haunt him, particularly in an election year. In this case, however, the Legislature was solving a huge and growing problem in new pockets of the state. Scott knew it. On top of that, Rep. Brad Drake and Sen. George Gainer, the two legislators representing Walton County in the state’s northwest, where all the confusion started, voted for the bill. Something else a governor looks at very closely before he signs it.

Few Floridians outside the legal profession are familiar with the term “customary use.” It’s what this issue, this law, is all about. Customary use refers to public access to private beachfront property. Generally speaking, beachfront property owners in Florida own the “dry sand” area leading down to the mean high tide line — the average of all the high-water heights observed over a period of several years. The land seaward of that, commonly known as the “wet sand” area, is held by the state in trust for the public.

The legislation didn’t change “customary use,” it simply provided a judicial process for counties and private property owners to follow, something that streamlined what previously was a lawyer-enriching circus — a kind of death by a thousand cuts of unending litigation.

This was all new to Walton County. In all, 35 Florida counties have coastlines (see the map here.) Some of them had been through the entire appropriate and researched process with their waterfront private property owners. Not Walton, which cried foul after the bill passed, bringing negative attention to itself and to the new law.

The counties that had given themselves a head start, incidentally, were exempted from the bill because they had their process in place.

In plain English, all HB 631 does is block local governments from passing ordinances that would allow continued public entry to privately owned beaches — even when property owners may want to block off their land. Instead, any city or county that wants to do that has to get a judge’s approval first.

Bill co-sponsor Edwards-Walpole told Sunshine State News, “I hope counties like Walton will take advantage of HB 631 and pass a constitutional ordinance that will protect the public’s ability to use private land, consistent with the customary use doctrine.”

If the governor’s executive order does nothing else, it should put anxious minds to rest — particularly the vocal minority who don’t understand the streamlined judicial process laid out in the bill. That would include business leaders and tourism officials across the state. Those folks have lamented in over-the-top interviews in the national and global press about “communities at war” over beach access.

Now, nearly two weeks after the law went into effect, Drake has announced town hall meetings (July 16 and 17) on the customary use in Walton County. Some fear his meetings will cause more confusion than clarity. The sheriff, the county commissioners, the state attorney and many others have attempted to quell the public and explain the situation. All without much success.

Within two hours of Scott issuing his order, Walton County Sheriff Michael Adkinson, Jr. took to Facebook Live in an effort to mitigate the public outcry and return Walton to calm. The sheriff, the peacekeeper, does at least keep trying.

Nancy Smith is the editor of Sunshine State News. She started her career at the Daily Mirror and The Observer in London before spending 28 years at The Stuart News/Port St. Lucie News as managing editor and associate editor. She was president of the Florida Society of Newspaper Editors in the mid-1990s. Reach her by email here, or follow her on twitter at @NancyLBSmith.