Customary use beach ordinance takes effect in Walton County

Walton County’s customary use beach ordinance became effective on April 1 with a few revisions resulting from recommendations by the county’s Customary Use Ordinance Committee. The ordinance debut took place despite injunctions being sought in two lawsuits to bar its taking effect.

The Customary Use Ordinance

The revised form of the Customary Use Ordinance was signed by Walton County Board of County Commissioners (BCC) Chair Cecilia Jones on March 29, the day after the BCC approved revisions to the ordinance, which had been approved in its original form on Oct. 25, 2016, with a delayed effective date. Also on the original ordinance adoption date, the BCC had approved the formation of the Customary Use Ordinance Committee to propose possible revisions and/or alternatives to the ordinance.
The ordinance recognizes and protects the public’s “long-standing customary use” of the dry sand areas of the beach owned by private entities—but states that the public “shall not utilize” a 15-foot buffer zone “seaward from the toe of the dune or from any permanent habitable structure owned by a private entity that is located on, or adjacent to, the dry sand areas of the beach, whichever is more seaward, except as is necessary to utilize an existing or future public beach access point for ingress and egress to the beach.”
Aside from the buffer zone, the ordinance bars interference with the public’s customary use of privately-owned dry sand areas of the beach, with the beach defined as “the zone of unconsolidated material that extends landward of the mean high water line to the place where there is a marked change in material or physiographic form, or to the line of permanent vegetation, usually the effective limit of storm waves, whichever is more seaward.”
The ordinance lists the “sole uses” permitted for the public on privately-owned dry sand areas of the beach. Sole uses recommended by the committee had omitted the use of beach umbrellas and picnicking and had eliminated the words “in a beach chair, or on a beach towel or blanket” in connection with sitting on the beach/sand. The final revision of the ordinance reduces the allowable size of beach umbrellas from a maximum of 10 feet to a maximum of seven feet in diameter instead of disallowing umbrellas. Picnicking was not eliminated as one of the sole permitted uses, and the words “in a beach chair, or on a beach towel or blanket” remain left in place in connection with sitting on the beach, one of the sole permitted activities.
Other sole permitted uses per the revised ordinance include traversing the beach, sunbathing, fishing, swimming or surfing off the beach, use of surfing or fishing equipment, and “building sand creations.”
The committee had recommended a list of activities to be prohibited for the public on privately-owned dry sand beach areas, including the use of tobacco, alcohol, illegal drugs, possession of animals, and use of tents.
The final version of the ordinance does not include a prohibition on alcohol or illegal drugs, the reasoning being that being that these are activities already regulated through other laws or ordinances and/or by entities other than Walton County Code Enforcement.
Possession of animals and use of tents are included as prohibited activities by the revised ordinance for the public on privately-owned dry sand beach areas.
The ordinance assures the ability of owners of property with dry sand beach area to make use of their property in any manner consistent with, and not aimed at interfering with, public use of this area as outlined in the ordinance.
Violations of the ordinance are to constitute civil infractions punishable by a fine not to exceed $500 per infraction, with each occurrence, or day of occurrence for continued violations deemed a separate offense. The right of the county to sue for relief in civil court to enforce the ordinance is also claimed.

Lawsuits request injunctions barring the ordinance

On March 29, three days before the ordinance was scheduled to go into effect, Walton County Circuit Court Judge Jeffrey E. Lewis heard a motion for an injunction on the ordinance in connection with the Rosemary Beach Property Owners Association, Inc., v. Walton County lawsuit.
Representing plaintiffs the Rosemary Beach property owners, attorney David Pleat stated, “This is such an important public policy issue for this community.”
“We have a community divided,” he continued.
Pleat was critical specifically of Walton County’s “method” of legislatively adopting the customary use ordinance rather than proceeding in a judicial manner on the issue. He asked for a delay of four to five weeks in the ordinance effective date in order for the homeowners’ challenge of this methodology to be heard in court.
Pleat likened the ordinance going into effect to letting “a genie out of the bottle.” He expressed confidence that his clients’ legal challenge would prove successful once the lawsuit proceeded—and spoke of the difficulty of “trying to re-educate the public” in the middle of the beach season after they had understood that customary use was in effect along the Walton County coastline.
“I feel that we are already at our limits for what we can manage on the beach,” Pleat stated.
Walton County Attorney Mark Davis indicated that Walton County had gone through a long process with the customary use issue before approving the ordinance. “We have broad, very broad home rule power,” Davis said, explaining that in Florida a local government ordinance may be found invalid only if it is pre-empted by the state or found inconsistent with state law. “He’s made none of those arguments,” Davis said of Pleat.
Judge Lewis found that the plaintiffs had not presented substantial evidence to satisfy one of the four “prongs” required to be met in order for a court to grant a preliminary injunction, establishment of the likelihood of irreparable harm with no adequate remedy at law.
“That’s a high hill to climb over,” he observed.
The injunction was denied on that basis.
In U.S. District Court in Pensacola on March 31, Chief District Judge M. Casey Rodgers also denied a motion for preliminary injunction on the ordinance. This was in the case filed by Walton County property owners Ed and Delanie Goodwin against Walton County.
In the matter, Judge Rodgers found that the Goodwins had “failed to clearly establish the burden of persuasion as to two of the four prerequisites for preliminary injunctive relief by failing to show irreparable injury or a favorable balance of harms when injunctive relief is considered against the public interest.”
In the same order, Judge Rodgers also denied a motion by the county to dismiss the Goodwins’ complaint.
The Goodwins’ lawsuit challenges the ordinance on the basis of the “Takings Clause” of the Fifth Amendment, which states that private property shall not “be taken for public use, without just compensation.”
The Rosemary Beach Property Owners Association, Inc., maintain in their lawsuit that establishment of customary use by means of the ordinance “is without legal authority.” They seek a declaratory judgment by the court as to whether the ordinance is void due to its attempt to “establish customary use through a legislative act as opposed to judicial determination…”
Although the requested injunctions were denied, both lawsuits are set to continue in their respective courts.