09 • 14 • 2018

Lawsuit Challenging Customary Use Doctrine in Florida Fails

A Walton County beachfront property owner’s attempt to challenge the doctrine of custom has failed in District Court for the Northern District of Florida. 

In Blessey v. Walton County, Plaintiff sought a declaration that Florida’s common law customary use doctrine is unconstitutional under the Fifth and Fourteenth Amendments of the U.S. Constitution.  

The Florida Supreme Court has previously recognized, in City of Daytona Beach v. Tona-Rama, Inc., 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.

In acknowledging the existence of this right, the Supreme Court correctly observed that the use of Florida’s beaches is inherently different from that of other Florida lands, and “require[s] separate consideration from other lands with respect to the elements and consequences of title.” “The interest and rights of the public to the full use of the beaches should be protected,” the Court proclaimed.  (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974))

Florida’s highest court further celebrated the significance of Florida’s beaches to the public as follows:

“[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.”  

As Justice Rodgers of the Northern District of Florida notes in her September 7th order, “[c]onsistent with this case law and effectively codifying that common law, the Florida Legislature recently enacted a statutory procedure that must be followed before a governmental entity may seek to regulate a parcel of property based on the customary use doctrine. See Fla. Stat. § 163.035 (H.B. 631 effective July 1, 2018).”  

Therefore, with both the Florida Supreme Court and state legislature recognizing the doctrine of custom as source of public beach access rights, it is unclear how or why Plaintiff Blessey sought to sue Walton County over the doctrine of custom.

Justice Rodgers dismissed the case for lack of subject matter jurisdiction. In reaching this decision, the Court agreed with the County that Blessey’s allegations, which “are essentially nothing more than a challenge to the common law doctrine itself, are insufficient to demonstrate a live case or controversy as well as a concrete or imminent injury for purposes of Article III standing.” Article III of the U.S. Constitution limits the jurisdiction of federal courts to actual cases and controversies. “Essentially, Blessey asks the Court to address his constitutional challenge to the common law doctrine in the abstract, which it may not do,” reads the Court’s order.

The Court was not persuaded that the County’s mere assertion of intent to hold a public hearing and initiate the statutory process required by H.B. 631 had deprived Blessey of any constitutional protection or injured any property right. Accordingly, the Court dismissed the lawsuit.  

Walton County continues to move ahead with the new process outlined in H.B. 631. While its original hearing scheduled for September 8 has been postponed, the hearing will take place November 3rd at 9 a.m., at a to be determined location. Members of the public can help the county protect the public’s customary use rights by submitting an affidavit speaking to your use of the beach. Instructions and affidavit forms may be found on the county’s website, here and here.  For more information please visit Surfrider encourages other Florida counties to proceed with this new process in protection of the public’s customary rights.