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Who owns Florida’s beaches? The answer might be clearer soon

A pink and white no trespassing sign planted on a beach in Santa Rosa
A sign claiming beach ownership for a residential development in Santa Rosa Beach in Walton County.

By Ann Henson Feltgen, FloridaBulldog.org

The Florida Legislature is expected to act soon on whether to overturn a controversial 2018 law that prohibits the public from setting foot on the dry sand of beaches that abut private property in Walton County in the Panhandle.

House Bill 631 was passed by the Legislature and signed by then-Gov. Rick Scott in 2018. However, when the law went into effect that July, public outrage about restricting access to public beaches convinced Scott, then running for a U.S. Senate seat, to issue a moratorium. His executive order halted any new state regulation that would deny public beach access and urged local government officials to take similar steps.

The law, however, remains on the books.

This year Rep. Evan Jenne, D-Hollywood, and Sen. Lori Berman, D-Palm Beach, introduced identical bills (Senate Bill 6063 and House Bill 1680) to repeal the law and replace it. The new law would establish so-called “recreational customary use” of the beach above the mean high-water line (dry sand) on private property. “Customary use” refers to how the public used the area in the past, regardless of whether it is privately owned or not.

Reps. Lori Berman and Evan Jenne

If approved and signed by the governor, the law would go into effect July 1.

Coastal states like California are reportedly eyeing Florida’s actions. The Tallahassee Democrat reported that a handful of other Florida counties are also keeping close tabs on the issue of customary use for all beaches. Many waterfront businesses claim the beach as theirs. In South Florida alone, TripAdvisors.com lists 137 hotels that advertise private beaches used only by their guests.

Who owns Florida’s beaches?

The issue boils down to who owns Florida’s beaches. The state maintains that it owns all beach property from the mean-high tide seaward (the wet sand), a position the U.S. Supreme Court agreed with in 1974. However, private property owners whose land abuts the coastline believe it is theirs or at a minimum the public should not be able to cross their property to reach it.

While the 2018 law allowed for customary use to continue, it would be determined on a property-by-property basis. And it was up to Walton County to prove why each property should be included under customary use. Prior to that, the property owners were required to prove why their parcel should be exempt from customary use.

“The Board of County Commissioners has been very pro of all beaches being accessible for public use and we went so long” without this change of use, said David Demarest, director of communications for Walton County’s Tourist Development Council (TDC). “The board at its January 14 meeting unanimously passed a letter of support for the pending state legislation” to undo what the previous Legislature approved.

Running parallel to legislative efforts is a case in the Walton County Circuit Court to strike down the 2018 law and return the county to customary use of all beaches. The case, brought by Walton County, was filed five months after the law took effect. The county is asking the court to strike the law and return the county to customary use of all beaches.

While some believe the court case is in abeyance until the Legislature acts, Walton County Public Information Manager Louis Svehla said that is not correct and the next court date is in March.

“It is not on hold,” he stated.

Swamped with suits

In the meantime, the county was required to give notice of the lawsuit to all 4,800 beachfront property owners (some of whom held individually owned condos) so they might intervene in the court case. Since then, the Walton County Circuit Court has been swamped with lawsuits from groups wanting to reinstate customary use, according to The DeFuniak Herald.

At least two nonprofit organizations have joined the fight to save beach public access. They are the Surfrider Foundation, with chapters in Florida, California, Maine and New Jersey, and the newly formed Walton County group, Florida Beaches for All.

Walton’s Tourist Development Council is engaged in a separate effort to provide additional public beaches by buying up as many beachfront properties as it can, said Demarest. To date, the TDC has spent a chunk of its annual $23-million budget to purchase eight large beachfront parcels that Demarest said will become public beaches with paved parking and restroom facilities. This year, the council plans to buy up three more properties and another two in 2021.

This tug-of-war over beach access began in 2016 when Walton County passed an ordinance formalizing public access to beaches abutting private property. This ordinance was the result of a new population of millionaire property owners attempting to eject the public from beaches adjacent to their mansions.   

The ordinance allowed beachgoers access to the dry sand areas but prohibited them from entering a buffer zone of 15 feet from homes/buildings except for entering or leaving the beach.

It also spelled out what activities were allowed on the dry sand – walking, jogging, sitting on the sand (in a beach chair, on a towel or blanket), using a beach umbrella that is 10 feet or less in diameter, sunbathing, picnicking, fishing, playing beach games, building sandcastles and similar traditional recreational activities.

What visitors could not do, according to the ordinance, was erect tents, have parties or loud music, bring glass bottles on the beach as well as other activities prohibited in the county’s Beach Activities Ordinance.

Unhappy millionaires

That ordinance didn’t sit well with many of the millionaires. A group headed by former Arkansas Gov. Mike Huckabee, who owns an oceanfront mansion in Walton County, hired lobbyists who convinced state legislators to sponsor the 2018 bill that later became law, often referred to as the Huckabee Bill. The legislation gutted the county ordinance, and property owners quickly reinstalled their no-trespassing signs and even hired armed security guards to enforce their privacy.

Huckabee did not respond to several messages from Florida Bulldog seeking his comment.

Walton County is situated on what is commonly called the “Redneck Rivera” that boasts some of the best sugar-sand beaches in the state and perhaps in all the country. This strip of surf and sand stretches some 95 miles along Highway 98 in the Florida Panhandle.

Walton County, with about 63,000 residents, offers 26 miles of beaches on the Gulf of Mexico that four million tourists visited last year, bringing in what officials said was an economic impact of $4.7 billion.

More than a third of residents hold jobs related to tourism. Median annual household income is about $51,000, but 17 percent of all residents live in poverty.

The agency assigned to tracking tourism, the county’s TDC, found that visitors provide 77 percent of all retail spending and paid 67 percent of all taxes through the now 5 percent tourist tax.

Huckabee’s walk

Huckabee had written to the two legislators who helped with the 2018 bill’s passage, heaping praise on House Rep. Katie Edwards-Walpole, D-Sunrise, and Senate sponsor Kathleen Passidomo, R-Naples. (Edwards-Walpole, an attorney, now is a former legislator.)  In the letter, Huckabee complained about the trash that beachgoers left behind.

“I’ve found used condoms on my walk-down, glass bottles broken, dog feces, litter, sharp tent poles that can cut bare feet,” according to a story in Mother Jones magazine.  Huckabee went on to say that large groups erected tents and blasted boom boxes so loud that they made the use of his property very difficult.

Huckabee’s sentiments did not catch on.

“Now, more property owners than not support customary use,” said Walton County’s Svehla. “Back then, people began putting up ropes, chains and signs warning beach visitors to stay off their property. The county passed a change to the sign ordinance so at least we could regulate what was on the sign.”

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Latest comments

  • Unfortunately neither of these bills addresses the underlying issue of the “right of action” created by HB 631.

    Florida Statute 66.021(1) says, “A person with a superior right to possession of real property may maintain an action of ejectment to recover possession of the property,”

    According to the State about 60% of Florida’s beaches are privately owned, although there remains a patchwork of allowances for public use including nourishment easements, title exemptions, and customary use ordinances.

    I wrote an opinion piece on this last year. The law was specifically designed to give the courts sole jurisdiction over which beaches can be designated as private. This sets up an endless supply of litigation and opportunities for political corruption since big developers, property owners, and wealthy hoteliers would profit handsomely from having the ability to make their beaches exclusive. I solved the problem of this by proposing an exception to the right of action provision:

    Amend Florida Statute 66.021(1) by adding the caveat, “…except on any beach as defined in F.S. 161.54(3).”

    F.S. 161.54(3) defines the beach as, “…to the line of permanent vegetation, usually the effective limit of storm waves.”

    The lawyer and former State Senator who wrote HB 631 responded with an opinion piece of her own because I asked at the end, “if the law is so confusing, why is fixing it so simple?”

    I encourage anyone to spend 10 minutes reading this exchange:

    What I wrote:
    https://www.floridatoday.com/story/opinion/2019/01/23/new-beach-access-law-confusing-and-dangerous/2657530002/

    Her Response:
    https://www.floridatoday.com/story/opinion/2019/02/01/beach-access-law-protects-property-rights/2743700002/

    I’ve lobbied numerous legislators and groups like Surfrider to take up this law change because it would end disputes over public vs private beaches. Florida’s beaches belong to all of us, we should all be allowed to use all of them.

    I hope you find this info useful. It’s an important issue and I’m grateful to anyone who is helping to shine a light on it.

    -Matt

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