Coastal advocates are celebrating another win for Florida’s “customary use” rights on the beach. The Gulf coast Town of Redington Beach in Pinellas County has prevailed in proving public recreational rights at its beaches based on a longstanding custom of such use.
Last week, the U.S. District Court for the Middle District of Florida found in favor of public access rights when it concluded, after an evidentiary trial, that the public has clearly established rights to recreate upon the Town’s sandy beaches under Florida’s doctrine of customary use. These “customary use” rights are upland and in addition to the public’s rights under the public trust doctrine, which are codified in the State Constitution (Fl Const., Article 10, Section 11).
The Court’s decision comes after the U.S. Court of Appeals for the 11th Circuit previously ruled in favor of the Town in 2021 and remanded the case to the District Court, giving the Town the opportunity to introduce evidence to prove customary use. Beachfront property owners had challenged the Town’s 2018 Ordinance recognizing and protecting public customary use rights, alleging it constitutes a prohibited “taking” of private property for public use without just compensation. As courts have recognized, however, if state law recognizes that the public has a right to use a property, based on the customary use doctrine or another background principle of state property law, then no takings claim can be made. This is because property owners purchase their properties against the backdrop of state property law principles. For example, where a state property law principle(s) provides a right of public access, an owner never had the right to exclude – and recognition of such public right takes nothing from an owner.
The Court of Appeal’s 2021 decision strongly affirmed the existence of the customary use doctrine in Florida, and that customary use, originating from English common law, is a background principle of Florida’s state property law. In its recent decision, the District Court likewise found that the Town’s ordinance “did not effect a facial violation of the state or federal Takings Clauses because the protection and regulation of customary use of private property in Florida is authorized and, when the underlying customary uses are proven, such protection or regulation does not constitute a taking.” The Court then proceeded to find no as-applied taking as well.
As recognized by the Town’s attorney Robert Eschenfelder, “The outcome of this case is not only a significant win for the residents of the Town of Redington Beach who had their customary use rights to use the beach at risk, but also because the court’s opinion provides detailed discussion on how each of the elements of the customary use doctrine can be proven at trial.” Eschenfelder notes, “Each jurisdiction’s case will turn on its own facts, but the opinion at least gives litigants and other courts a better idea of the quality and quantity of evidence which would be necessary to prove the doctrine applies in a given location.”
The Florida Supreme Court has described Florida’s customary use doctrine and its elements as follows: “If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner." (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974)(emphasis added))
Using the preponderance of the evidence standard, the Court analyzed these elements.
With respect to ancient use, the Court looked to the record of the Tona-Rama case where the First District Court of Appeal noted that the public had used the soft sand area of the beach “[f]or more than twenty years,” and recognized that “the Florida Supreme Court necessarily determined that the evidence of the past twenty years sufficiently proved the “ancient” requirement, even without the benefit of a history expert.” The Town presented evidence of use going back to at least the 1950s, and the Court was satisfied this met the “ancient” requirement; it was of no import that the Town did not call witnesses who could speak to use of the beach when the Town was formed in the 1940s (the Court notes, “perhaps because such persons are no longer living.”) The Court also sensibly recognized, as already observed by other Florida courts that the phrase “ancient use” is an awkward concept in a new world society.
With respect to the reasonableness element, the Court applied an ordinary dictionary definition of reasonableness which is “generally understood and defined […] to mean rational, appropriate, ordinary, or usual in the circumstances.” The Court found, as Surfrider’s Florida members know, that the limited uses protected by the Town’s Ordinance, such as sitting on or walking along the beach, making sand castles, picnicking, and using a seven-foot diameter umbrella for shade are all “quintessentially common and reasonable uses of beaches in general, and of the Town’s beaches in this case.” “Likewise, using the dry sand beach while fishing at the water’s edge, surfing, or swimming (which of course are performed in the water) are also common and, in this setting, are reasonable as they have been historically practiced […] [a]nd as to activities such as surfing (which the Court notes would be inclusive of what some Town witnesses called “boogie-boarding”) and fishing, no testimony was offered that the parts of these activities taking place on the dry sand beach are somehow unreasonable.” Rightfully, this language strongly indicates that such activities are also plainly reasonable at beaches across the entire state. The Court also rightfully recognizes that local jurisdictions can still regulate uses under their police power, to prohibit activities like bonfires, littering, or those involving excessive noise.
With respect to whether public use was “without interruption” the court recognizes that while the intensity of use may vary given the day of the week or weather conditions, for example, the evidence showed use “was regular” and “consistent over time,” and that such regular, consistent uses were not persuasively rebutted.
Finally, with respect to the “free from dispute” element, the Court recites numerous witness accounts of use without confrontation or being asked to leave, as well as actual perceptions of Town residents who believed it was acceptable for them to be on the beach. While some witnesses described some opposition in the last couple of years, including from certain Plaintiffs who have asked some beachgoers to “get off their land,” the Court was convinced that, until then, history showed that the use of the beach had been free from dispute.
In sum, the Court found that the Town’s evidence “substantially surpassed” that required to establish customary use. Thus, the Plaintiffs’ takings claims failed, and public beachgoers may utilize the Town’s dry sandy beaches for the protected recreational uses recognized in its local ordinance.
The decision is good news both for the Town of Redington Beach and its beachgoers, and also other Florida jurisdictions wishing to recognize and protect customary use of their shores. Florida beaches are an intrinsic part of the state, known to attract residents and visitors alike. The state and local governments owe the public a duty to do everything in their power to protect and maintain public beach access for low-impact and respectful recreational uses, and Surfrider strongly supports protecting the public’s customary rights.