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New law Scott signed makes public access to beaches harder to establish

In 2013, residents upset with visitors' behavior on the beach outside their homes put up ropes to keep them away. [JIM DAMASKE | Times (2013)]
Published Apr. 5, 2018

A bill that Gov. Rick Scott signed into law last month has sent shock waves through Florida's waterfront communities and prompted questions from confused beach residents and businesses. Experts say the law's effect on beach access is not quite as dire as some people fear.

The bill, HB 631, blocks local governments from adopting ordinances to 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 — by suing the private landowners.

The new law "is very bad for local governments," said Alison Fluornoy, a University of Florida law professor. "Suing coastal landowners as the only avenue to establish access is not an attractive option." She also pointed out that requiring a lawsuit means the Legislature put an added burden on the courts without offering any additional funding.

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The new law, which goes into effect July 1, has left some people afraid it will immediately cut off public access to beaches all over the state. That's not the case.

"We've been getting lots of calls from people confused about the issue, because it is so confusing," said Robin A. Sollie, executive director of the Tampa Bay Beaches Chamber of Commerce.

Environmental groups such as the Florida Wildlife Federation and the Surfrider Foundation, as well as the Florida Association of Counties, strongly opposed the new law. But county association spokeswoman Cragin Mosteller said that, for now at least, only one Panhandle county is seeing an immediate impact.

While many of Florida's prettiest beaches are part of the state park system, and thus guaranteed to be open to the public, the state estimates about 60 percent of Florida's beach property is privately owned. Private ownership extends down to where the sand gets wet, also known as the mean high water line, which is public.

In many areas where beaches are privately owned, tourists and even local residents frequently wander over and set up their chairs, collect sea shells and build sand castles.

Some do worse. In 2013, some residents of the Mandalay subdivision on north Clearwater Beach tried roping off the sand behind their homes after beachgoers left trash, argued with residents and, in one instance, had sex close enough that a homeowner's teenaged daughter could hear them from the patio.

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In that case, local officials were able to work out the problems without resorting to new rules. But three times, local governments have imposed a new ordinance that would guarantee the public continued access to privately owned beaches.

Beach access ordinances are based on a legal principle called "customary use," defined as the traditional use of dry beach sand for public recreation, even on private property.

The Florida Supreme Court has ruled that if a private property owner tries to put up a fence or calls police to eject beachgoers who have been using the beach for years, the local government can cite "customary use" to allow the public to remain — but only if such use has been "ancient, reasonable, without interruption and free from dispute."

Ordinances enacted by two of the three counties, St. Johns and Volusia counties, were left standing by wording in the new law.

The only beach access ordinance being abolished is the one passed last year in the Panhandle's Walton County, where the list of beach homeowners includes such well-known names as former Arkansas Gov. Mike Huckabee and ex-White House adviser Karl Rove. Last year when a similar bill was proposed in the Legislature but failed, it was nicknamed "the Huckabee amendment."

After Walton County passed its ordinance, some beach property owners sued to overturn it. They lost, but have appealed the decision.

Sen. Kathleen Passidomo, R-Naples, who sponsored the Senate version of the bill that Scott signed, said she found it "appalling" that a city or county can pass an ordinance undercutting private property rights.

"If you're going to take away somebody's property, you have to do it through the courts," said Passidomo, a lawyer.

Despite the previous lack of controversy over common use, Passidomo predicted the future would bring further disputes like the one in Walton County.

"This problem is not going to go away," she said, "and it's going to happen up and down the coast."

To the House sponsor, another lawyer, the bill simply codified a process that allows such ordinances to be passed with less controversy, by getting a judge's ruling up front.

"We're not talking about privatizing beaches," Rep. Katie Edwards-Walpole, D-Plantation, said when she presented it to the House Judiciary Committee during the session. "We're talking about private land and protecting the public's right to use that private land under the customary use doctrine."

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Although the bill passed both the House and Senate by wide margins, it has proven unpopular among many beach residents, Realtors and other business people, who strongly urged Scott to veto the bill.

"Our very livelihood depends on everyone having access to our greatest natural resource," Destin real estate agent Alice Duncan wrote to Scott. "Please, please veto this. Not everyone can own a beachfront mansion."

Attached to Duncan's email to Scott was a sign that said "private beach" and the caption: "The beach is not a gated community. Tell Gov. Scott to protect customary use laws. The coastline belongs to the public."

Scott's office reported that opponents outnumbered supporters by an 8-1 margin, with 327 calls and messages against the bill and 40 in favor. Scott, himself, owns a beachfront mansion in Naples.

Contact Craig Pittman at craig@tampabay.com. Follow @craigtimes.

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