The Shifting Sands of Florida's New Beach Bill
They say a camel is a horse drawn in committee. They also say that laws are like sausage: you don't want to see how either gets made. These adages proved their worth in Florida's new beach bill, which was signed by the Governor on March 23rd and has been making waves ever since. The heart of the controversy seems mostly to be confusion about what the bill really does when it comes to walking on the beach, or getting to the beach, to be more exact.
Part of the confusion may lie in the fact that what began as a couple of paragraphs of new law turned into 18 pages of substantial amendments to existing law between the time HB631 was introduced and the time the committee substitute finally passed the full House as amended. Nevertheless, we'll try to sift through the wording and give you a clear view of the new law.
Who owns the beach?
When private property includes beachfront property, the property owner's boundary may extend toward the ocean as far as the high tide line, also known as the mean high water line, or MHWL. In other words, the property owner owns the dry sand, and the public owns the wet sand. This is a good rule of thumb for beachgoers about where to walk without trespassing on someone's private property. Of course, the question then becomes, how do we get to the wet sand?
The only logical answer seems to be crossing the dry sand which may be privately owned. But private resorts prefer to restrict beach access to their guests, and homeowners don't want people traipsing back and forth across their property and having parties basically behind their house.
Balancing the right of the public to access public beaches with the sacred rights of property owners is the conundrum facing local governments. The way they usually resolve the matter is by passing "customary-use" ordinances that let people access the beach even across private property. Such access can be granted, according to the customary use doctrine, when such access is ancient, reasonable, without interruption and free from dispute.
Now comes the new law
Until now, a property owner who wanted to challenge a customary use ordinance had to go to court to do so. The passage of HB631 changes the scenario by instead requiring the governmental entity (city, county, municipality) to first go to court and petition for a customary use ordinance. Only if a judge determines that the property meets the definition of customary use will an ordinance be allowed.
In theory, this new law will relieve private property owners of the time, expense and hassle of instituting a lawsuit to challenge an ordinance. It could also limit public beach access by curtailing the number of customary use ordinances that are allowed to go into effect, since the burden would be on the city upfront to prove that one is justified.
The new law goes into effect July 1, 2018, so it won't be long before we begin to see its effects. Over half of the beaches in Florida are privately owned, so it's no wonder this bill has stirred up so much controversy among public beachgoers. As Representative Wengay "Newt" Newton of St. Petersburg explained to WTSP Channel 10 News, the public can still use the beach like they used to and should not expect any sudden changes. The only thing that has changed is the ability of a local government to enact access ordinances on its own without first having the proposed ordinance reviewed by a court for compliance with the law.
