12 • 01 • 2017
Florida County’s Right to Protect Beach Access Upheld
The Surfrider Foundation’s Emerald Coast Chapter is celebrating a win for public beach access in Walton County, Florida as, last week, the U.S. District Court for the Northern District of Florida upheld the County’s “Customary Use” Ordinance.
Surfrider Foundation is pleased with the Court’s decision on the “customary use” issue in the Alford v. Walton County case, whereby Justice Rogers upheld the right of Florida counties to recognize, regulate, and protect public beach access where the public has traditionally recreated. Surfrider previously supported and encouraged the County to recognize and protect the public’s right to continue to utilize its beaches based on a custom of doing so for generations. In 2016, the County did so when it enacted the Customary Use Ordinance, providing 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 protected.” This case centers around the validity of that ordinance. While acknowledging a “buffer zone,” according to the ordinance, “no individual, group, or entity shall impede or interfere with the right of the public at large, including the residents and visitors of the County, to utilize the dry sand areas of the beach that are owned by private entities for recreational purposes.”
In upholding Walton County’s authority to enact the ordinance, the Court agreed it is a valid exercise of Constitutional and statutory “home rule” authority. As the Court observed, the Florida Constitution grants non-charter counties, like Walton County, the “power of self-government as is provided by general or special law,” and under State statute, counties shall have the power to carry on county government so long as it is not inconsistent with general or special law. Under case law and statute, these authorities are to be liberally construed to grant full “home rule” authority to Florida counties. In other words, a county is free to adopt ordinances on any subject so long as it doesn’t conflict with state law. The Court found, here, there is no conflict.
The District Court took time to point out how the Florida Supreme Court has previously recognized “the public’s unique interest in, and appreciation of Florida’s beaches”:
“[n]o part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.”…
“There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight. Many are they who have felt the lifegiving touch of its healing waters and its clean dust-free air. Appearing constantly to change, it remains ever essentially the same.” (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974))
The Court further correctly observed how the Florida Supreme Court has explained “that Florida’s beaches are used inherently differently from other Florida lands and “require separate consideration from other lands with respect to the elements and consequences of title,”” and that the “interest and rights of the public to the full use of the beaches should be protected.”
As the Tona-Rama court provided, the public’s right of customary use exists in a Florida beach if the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption, and free from dispute.
While the Alfords cited and tried to rely on two cases that reference the customary use doctrine, the District Court properly found that the cases don’t suggest that the County’s ordinance was ultra vires (outside its authority). “… The Fifth District Court of Appeal’s language approving [Volusia County’s customary use ordinance] is instructive. In fact, nothing in Reynolds or Trepanier indicates that a county has no authority to regulate a customary use right, contrary to the Alfords’ assertion.” Nor does a 2002 Attorney General Opinion which discusses the customary use doctrine – instead, as the District Court’s opinion provides, “these authorities confirm that the public’s right is acquired by custom, which is ‘inherently a source of law that emanates from long-term, open, obvious, and widely-accepted and widely-exercised practice….’”
The Court notes that Walton County’s Ordinance was based on the county’s legislative research, analysis, and testimony confirming that customary use has applied to all county beaches since before 1970 and “since time immemorial.”
Accordingly, the “longstanding appreciation for Florida beaches, articulated by the Legislature and the [Florida] Supreme Court alike, and the absence of legislation limiting a county’s authority to regulate the public’s recreational customary use” led the Court to conclude that Walton County acted within its home rule authority in adopting its ordinance recognizing and regulating customary use.
Recognition of this essential home rule authority is an important win for Florida residents and visitors who come to the state to enjoy its beaches. While customary use ordinances do not preclude beachfront property owners from seeking a judicial resolution where the owner disputes the existence of custom in their area of beach, such challengers would have to overcome the fact that broad public use and enjoyment of the Sunshine State’s beaches dates back for hundreds of years. Surfrider Foundation is supportive of Walton County’s ordinance and of all local counties and cities recognizing and protecting customary use of their beaches.