Is That Beach Private Or Public? Lawmakers Want Courts To Decide

Feb 5, 2018

Florida lawmakers want to weigh in on who really has access to the state’s beaches. A bill moving in the statehouse is meant to settle a long-running dispute between private landowners and the public, by handing the issue over to the courts.

Credit Pablo Recio via flickr / https://www.flickr.com/photos/pablorecio/11741266365/

Most of the people sunbathing on Florida’s beaches probably aren’t thinking about private property rights. But maybe they should be. The question of who can go to which beaches has plagued Floridians for years. Holly Parker Curry represents the Surfrider Foundation.

“I ask what could be more reasonable than the ability to walk down the beach without fear of harassment or being charged with trespass?" she asked.

Many would probably agree her. But property ownership on the seaside isn't always obvious. From the water all the way up to where waves crash on the sand is publicly-held state land. But sandy, dry parts of the beach can be privately owned.

But ownership and access can get even more complicated: if people have been walking on a particular stretch of beach for years, without interruption or dispute, they can earn the legal right to be there, even if the area is technically private. This is known as the customary use doctrine. Representative Katie Edwards-Walpole explains.

“Over the years, you can call it from the beginning of time, as far back as you can remember, you may have individuals who have crossed over that person’s private property. Maybe they have been using it for recreation purposes such as fishing, sunbathing, maybe just walking across the property, bird watching, any number of specific uses. And so over time you have what we call those things that are customary, they’re ancient, they’re reasonable,” Edwards-Walpole said. “They don’t conflict with the private property owners right to both possess, enjoy and use that property, but the public acquires this non-possessory right.”

Local governments can regulate customary use for now, and make parts of privately owned beaches is open to the public. Understandably, some of the people who paid good money for that land are upset. And they’re going to court.

Gary Hunter represents landowners who are challenging the local ordinance in Walton County. He’s in favor of the bill Edwards-Walpole is sponsoring.

“It says if that’s what you’re going to do, local government, you’re going to do it in front of court. You’re not going to do it in front of a county commission where there’s no due process rights for a private landowner to stand up and put on witnesses and testimony and cross examine individuals to determine whether indeed there is a public right to some portion of your property that you otherwise have ownership to,” Hunter said.

Edwards-Walpole’s bill would make the courts settle this issue. And it would stop local governments from passing customary use ordinances, unless a judge ok’s it first. But taking power away from local officials has the Sierra Club’s David Cullen worried.

“There is some considerable hostility to local government in a number of bills that have been filed recently. And Sierra Club is very much opposed to preemption, so at this point we have to oppose this bill,” Cullen said.

Edwards-Walpole insists the bill is not about fencing off public beaches, but about honoring the rights of private landowners. The problem is not everyone knows some sandy areas of the coast are privately-owned. Cullen says that could be bad for tourism.

“That would mean that folks who come to use our beaches in the state of Florida could be subject to a, being rousted by the police, b, being charged with trespass, and c, possibly having to go to the courts to try and impose customary use of real property,” Cullen said.

A handful of lawmakers have voted against Edwards-Walpole's plan, but not enough to derail it. The measure is now ready for a floor vote in the House. A similar bill in the Senate has two more committee stops.