By DOTTY NIST
Approved on May 8 were new rules in connection with signs and obstructions on the beach in Walton County.
The approval took place at a special Walton County Board of County Commissioners (BCC) meeting on that date at the South Walton Annex.
Previous ordinance found unconstitutional
Previously, an ordinance amending the Walton County Waterways and Beach Activities Ordinance had been approved in 2016 to address signs and beach obstructions. The measure had been motivated by an increase in signs, including “private beach” signs, and other items such as posts, fences, chains, and ropes being placed on the beach by beachfront property owners.
That ordinance had prohibited signs and other obstructions on the beach at any time, day or night, with any obstruction or personal property item remaining on the beach at night subject to being deemed abandoned and removed by county personnel.
“Beach” in the ordinance was defined as, “the soft sandy portion of land lying seaward of the seawall or the line of permanent vegetation.” However, any sign, rope, chain, sign, fence or similar item located at a private dune walkover or anywhere landward of the permanent vegetation line was excluded from the ordinance prohibitions.
The ordinance went into effect in June 2016 and was challenged in federal court by Walton County property owners Lionel and Tammy Alford. The Alfords alleged in their complaint violations of the U.S. Constitution by the county in connection with the prohibition action. Among other allegations, they maintained that prohibitions contained in the ordinance violated their First Amendment free speech rights.
In September 2017, Chief United States District Judge M. Casey Rodgers found in favor of the Alfords. “The Obstruction Amendments are not narrowly tailored and consequently restrict substantially more speech than necessary to achieve the County’s legitimate interests. The record reflects that the County admittedly failed to consider any less restrictive alternatives,” she wrote.
“Thus, rather than consider any less-restrictive alternatives, such as limiting the number or size of signs, the County ‘completely disregarded’ any less-restrictive alternatives or effective alternate channels of communication merely out of administrative convenience, which does not pass intermediate scrutiny,” Judge Rodgers continued.
“The County has an obligation to avoid restricting speech to a greater degree than necessary,” she stated.
Judge Rodgers did not dispute the county’s ability to regulate fences, ropes and chains on the beach—and agreed as to the county’s “legitimate governmental interest,” in regulating obstructions of this nature on the beach.
She concluded that, due to not being “narrowly tailored” to the county’s interest, the amendments defining “obstructions” were “facially unconstitutional.”
This was specifically related to code provisions defining obstructions as, “including but not limited to ropes, chains, signs, or fences,” and stating, “Obstructions include, but are not limited to ropes, chains, signs, or fences.” Judge Rodgers ordered these provisions to be stricken from the ordinance and county code.
Proposed ordinance provisions
At the May 8 BCC special meeting, Walton County Attorney Sidney Noyes recalled a March 2016 BCC public workshop attended by hundreds of citizens at which many in attendance had spoken against signs and other obstructions on the beach, with safety concerns highlighted.
She summarized the ordinance, which, like the previous one, would apply only to “the soft sandy portion of land lying seaward of the seawall or the line of permanent vegetation.” In contrast with the previous ordinance, the new ordinance distinguishes signs from obstructions and deals with the two differently. The ordinance defines an obstruction as “an object that impedes, hinders or prevents pedestrian and/or vehicular passage,” and states that obstructions may include ropes, chains fences, or other items. Signs are not included in the obstruction definition in the ordinance.
The ordinance defines a sign as, “any writing, symbol, pictorial presentation, number, illustration, decoration, flag, banner, pennant or other device, which is supported by one or more columns, upright poles, or braces extended from the ground, or that is erected on the ground, and which is used to announce, direct attention to, identify, advertise or otherwise make anything known.”
Noyes indicated that the ordinance would ban “obstructions” from the beach around the clock—and would allow signs on the beach only during the daytime.
Sand fences for which all required state and federal permits had been obtained would be exempt from the obstructions prohibition.
Requirements for signs contained in the ordinance include that signs are not to be permanently affixed to the ground and that they may not exceed 18” by 24” in size. Noyes explained that signs could be placed no closer than 250 feet apart, or at each corner of the property boundary for property lines less than 250 feet apart. They could not be placed seaward of the mean high water line or the erosion control line.
Comment in support of and against the ordinance
Brian Kellenberger, beach operations director for the Walton County Tourist Development Council (TDC) spoke about the approximately 500 trash bag locations that TDC personnel service. He commented that posts and signs put up by property owners aimed at channeling people to the water’s edge can block TDC trucks from navigating the beach for trash collection, and even more so on the east end where the beach is very narrow. When the beaches fill up with people, signs and obstructions can limit the ability of the trucks to go east and west, Kellenberger said.
“It does impede our mission,” he said. Kellenberger told the commissioners that the ordinance revisions as proposed by Noyes would help in this respect.
Asked about the impact of fences extending into the water, Kellenberger said it could be necessary to remove such a fence in order to do a water rescue.
Melinda Gates of Walton County Public Works Environmental spoke about the Endangered Species Act of 1973 and its prohibition on “take” of endangered species on the beach, which in Walton County includes four species of sea turtles, along with beach mice and piping plovers. Sea turtles come onto the beach to nest in the evening and may be hindered by items left on the beach at night, Gates indicated. Sea turtle hatchlings also emerge at night and must be able to move into the gulf without being obstructed in order to survive.
Speaking in support of the ordinance, Gates noted that obstructions and signs left on the beach in the evening could potentially cause endangered species taking.
Asked about the meaning of “take,” Gates explained that it could include killing of an endangered species animal, removal of its habitat, or elimination of its ability to nest or reproduce.
Among other comment, Seagrove resident Leigh Moore spoke in favor of simple aesthetics guidelines for signs on the beach. “We regulate private property all the time,” she told the commissioners.
“What will our visitors think when they see fences, they see obnoxious signs?” asked south Walton County resident Barbara Morano. “We’ve got to get this right,” she urged.
Kent Safriet, an attorney representing beachfront property owners, raised objection to the ordinance’s requirement for signs to be removed from the beach in the evening. He warned that the new ordinance would not survive a First Amendment challenge in court.
Safriet highlighted the impact of the evening sign removal requirement on absentee homeowners. “It’s a burden, and it goes too far,” he complained.
Walton County Commission Chairman Bill Chapman also raised concern about the requirement to remove signs marking property lines at night in connection with instances of law enforcement being called about trespassing on private beachfront property. Law enforcement always asks the property owner where the property boundaries are, he noted.
Noyes responded that if the property is less than five acres and contains a single-family home, a property owner is not required to post any markers in order for law enforcement personnel to enforce trespassing violations.
Uniform sign appearance standards and approval of the ordinance
District 2 Commissioner Cecilia Jones moved for approval of the ordinance with the addition of standards to make the appearance of signs on the beach uniform as some had suggested in discussion at the hearing.
At her suggestion, provisions were added to require the signs and posts to be white in color, with professional lettering in the colors of the blue, aqua and light yellow TDC logo palette.
With that addition, the ordinance was approved as presented in a 4-1 vote, with Chapman voting no. He indicated that his concern was related to the requirement to remove property line markers in the evening.
Asked how soon the enforcement of the ordinance could take place, Noyes responded as soon as it was signed by the BCC chair and received by the Department of State.