By DOTTY NIST
A federal court judge has opined that Walton County’s action early in the COVID-19 pandemic to temporarily close beaches to all persons on privately-owned as well as publicly-owned beach property, “was a reasonable public-health measure based on what was known at that time about the spread of covid-19.” This was part of an Oct. 15, 2021, order by United States District Judge Robert L. Hinkle in favor of Walton County.
By means of amending/expanding another ordinance that had been approved on March 19, 2020, the beach closure had been an action taken by the Walton County Board of County Commissioners in emergency session (BCC) on April 2, 2020.
As a measure to prevent the spread of COVID-19, on March 19, 2020, the BCC had approved the original ordinance, which closed the beaches at public beach access areas to all members of the public for a 30-day period. At that time there had been direction by the BCC to Walton County Sheriff Mike Adkinson to seek the cooperation of owners of private beachfront property to keep the beach clear on their properties, as well, to reduce spread of the pandemic.
Two weeks later, on April 2, with a Florida Governor’s executive order in place suspending property owners’ ability to rent out their properties short term and also a “Safer in Place” executive order directing everyone in Florida to limit activities outside the home to those necessary to obtain or provide essential services or conduct essential activities, Adkinson had reported to the BCC that second-home owners in Walton County were bringing in guests from COVID-19 “hot spot” areas and were being vocal about their right to do so.
He had also stated that, judging from contacts to his office and social media posts, “You’re literally talking about thousands of people that are saying they’re going to come here from states that have shelter-in-place orders (to) this state that has a shelter-in-place order…and then come and sit on the beach.”
Later during the course of their April 2 emergency session meeting, the BCC had voted to amend the ordinance to expand the temporary beach closure, also closing the beaches to all persons, including the property owners and their guests, on privately-owned beach property.
That ordinance had defined the beach as, “the soft sandy portion of land lying seaward of the seawall or the line of permanent dune vegetation.” It did not restrict the property owners’ use of other parts of their property.
The temporary beach closure had remained in effect until April 30, 2020, the day the ordinance expired.
The BCC’s April 2, 2020, action had been met days later with an April 6 lawsuit filed by some 15 Walton County property owners in U.S. District Court in Pensacola. Among the property owners had been Mike Huckabee, former Arkansas governor, who had been a Walton County resident and beachfront property owner at the time the lawsuit was filed and through early 2021. Named as defendants were Walton County and Sheriff Adkinson in his official capacity.
The plaintiff property owners’ lawsuit alleged a series of constitutional violations, including the “Takings Clause” of the U.S. Constitution’s Fifth Amendment, prohibiting private property being taken for public use without just compensation; the right to privacy under the Florida Constitution, the U.S. Constitution’s Fourteenth Amendment right of due process, and the U.S. Constitution’s Fourth Amendment prohibition of unreasonable seizure.
The plaintiffs later dropped Adkinson from the lawsuit, and some of them dropped their claims against the county, with an amended complaint and then a second amended complaint being filed by the remaining plaintiffs.
Judge Hinkle found the property owners’ claims for declaratory and injunctive relief to have been rendered moot since the ordinance had expired and had little chance of being reenacted.
“This is so,” he wrote, “not only because of the current political approach to covid-19 in this state but, more importantly, because scientists and even public officials have learned a great deal more about how covid-19 is transmitted. Not even the most aggressive advocates of mitigation efforts now contend it is necessary or even helpful to preclude single-family gatherings on private beaches. This ordinance isn’t coming back.”
On the question of an alleged taking of the subject property, Judge Hinkle found that the ordinance did not create any physical taking, since it did not authorize any intrusion onto the property or take the property “for use by the county, the public, or anyone else.”
Nor did he find that the ordinance had created a regulatory taking, since all the plaintiffs except one were still able to use most of their property during the time the temporary restriction was in place. However, he noted that all of plaintiff’s Sandy Shores Property Association’s parcel is on the beach.
Judge Hinkle wrote, “The bottom line is this. The Board of County Commissioners faced an escalating pandemic that posed an enormous threat to public health. There was no way to know at that time how many people would die or become gravely ill and how to best minimize the number. Decisive action seemed appropriate. In closing the beaches, the county exhibited no animus toward these plaintiffs or anyone else.”
He did not find the temporary restrictions on the plaintiffs’ access to part of their property to be an unconstitutional taking.
With regard to the property owners’ assertion that the beach closure was an unreasonable seizure of their property in violation of the Fourth Amendment and make applicable to the states by the Fourteenth Amendment, Judge Hinkle found that there had been no seizure of property, only a restriction of use as “a reasonable public health measure based on what was known at that time about the spread of covid-19.”
Dismissing any unabandoned federal claims for just compensation and damages and deeming other claims as moot, Judge Hinkle directed that the case file be closed.