Story and photos by DOTTY NIST
State Representative Brad Drake (R-Eucheeanna) sorted out the good, the bad, and the “dirty” about HB 631 at his July 17 town hall meeting at South Walton High School, also taking input from attendees, who numbered approximately 350. Drake shared the town hall stage with Walton County Sheriff Mike Adkinson, Walton County Administrator Larry Jones, and State Representative Mel Ponder (R-Destin).
Signed by Florida Governor Rick Scott on March 23, HB 631 took effect on July 1. While the law set up a judicial process for local governments to use to affirm recreational customary use on the beach, it prohibited governments from passing, enforcing, or keeping in effect any ordinance or rule based on customary use without going through that process.
Entitled “Possession of Real Property,” HB 631 had been sponsored by State Representative Katie Edwards-Walpole (D-Plantation) and dealt mainly with real property ownership and property owners’ ability to recover property from another person who gained possession by means such as forcible or unlawful entry. The customary use language in its original form had consisted of a section (Section 10), only a few lines at the end of the bill. Section 10 was expanded to several pages by the time HB 631 got final approval by the Florida House of Representatives in early March in a 95 to 17 vote.
The companion Florida Senate bill was sponsored by Kathleen Passidomo (R-Naples).
In Walton County, the new law’s most noticeable impact so far has been that it negated the county’s existing customary use ordinance—just in time for the Fourth of July, Walton County’s busiest time for tourism.
Prior to July 1, Walton County’s customary use ordinance had affirmed a right by the public to use of certain dry sand areas of privately-owned property for traditional recreational uses such as walking, swimming, fishing, and sunbathing.
In contrast with its impact on Walton County, HB 631 vested and left in place the other two customary use measures in existence in the state (in St. Johns and Volusia Counties) because those had gone into effect before Jan. 1, 2016, the cut-off date stated in the new law. Walton County’s customary use ordinance was approved in October 2016 and went into effect in April 2017, so it was voided.
Drake said he thought what most people objected to about the law was Walton County being targeted in this way. “That’s what I’m mad about,” he said, laying the blame on “dirty politics.”
Asked why the Jan. 1, 2016 date had been decided on to determine vesting, Drake responded, “They figured what it would take to exclude Walton County.”
“I think I’ve been clear that I don’t agree with the dirty politics. That’s what was shoved down our throats,” he said later in response to a question.
Drake had voted against HB 631 as the bill was written when a vote was taken in the House on Feb. 14. However, he voted yes on an amended version of the bill on March 8.
“I know I’m on trial tonight, absolutely,” he told the crowd in reference to his vote to approve the unpopular legislation.
Attendees were provided with a handout consisting of copies of HB 631 as originally voted on in the House and in its amended form. Drake summarized the landlord/tenant and ejectment law language that made up the vast majority of the bill and then moved on to detail the actual provisions of Section 10, the customary use portion, in the original version of the bill.
He read from that the original version of the bill, which had provided that no local government entity could adopt or keep an ordinance or rule establishing or affirming customary use of the beach unless, before adoption of the ordinance or rule, a court had determined the specific portion of the beach to which the ordinance or rule applied to be accessible to the public under the doctrine of customary use. Drake emphasized that he had voted no on that version. He requested that attendees turn to a part of their materials showing the 92 to 14 House approval vote and his no vote.
He recalled that the Senate had then taken up the bill, with a number of Walton County commissioners and representation from the Surfrider Foundation coming before the Senate to speak in support of customary use. Coming together to look for common ground on the bill, Drake explained, were Senators George Gainer (R-Panama City) and Rob Bradley (R-Orange Park), along with Senate companion bill sponsor Passidomo.
As a result of those efforts, he continued, the Senate amended the bill, leaving in place the landlord/tenant and ejectment sections and revising Section 10. In that revised customary use section, Drake explained, a governmental entity was provided with the ability to seek a “judicial declaration” by which customary use could be affirmed. New language detailed the steps and procedures for seeking that judicial determination. This court ruling, he told the group, would not be an extended lawsuit. The amended bill was the one that Drake had voted in favor of.
Drake remarked that Walton County had spent almost $300,000 defending customary use in lawsuits filed by beachfront property owners after the county’s customary use ordinance was approved. While the Florida Supreme Court has set forth the doctrine of customary use in a 1974 decision in the City of Daytona Beach v. Tona-Rama lawsuit (Tona Rama), which supported the public’s right to recreational use of the sandy area adjacent to the mean high water line, Drake cautioned that rulings in the current customary use lawsuits could possibly not support that doctrine and set a new precedent.
Drake detailed the judicial determination procedure, which includes notification requirements, a listing of the specific parcels for which the local government seeks a judgment that customary use exists, and presentation of evidence of customary use that is ancient, reasonable, without interruption, and free of dispute (the Tona-Rama decision standards for customary use).
He highlighted one benefit he saw in connection with HB 631. While Tona Rama had set the precedent for the doctrine of customary use, it was a court decision and not state law, he observed. Drake emphasized that HB 631 had put customary use into state law for the first time.
Turning again to his votes regarding HB 631, Drake noted that when it had been “as clear as day,” with the original version that the intent had been to eliminate customary use, he had voted no. He indicated that after working to get concessions and improve the legislation from a customary use standpoint he had made commitments that he believed he should keep, resulting in his yes vote on the final bill.
Drake said he understood that many people were calling for repeal of HB 631. (In fact, days earlier there had been an announcement by Senator Darryl Rouson, D-St. Petersburg, that the state senator had filed a bill that would repeal the legislation.)
Drake cautioned that, with repeal, the fact that customary use is now a “law of the land,” would go away.
The customary use ordinance that had been approved by Walton County had encountered legal challenges in a number of court cases, he reminded attendees. Drake also raised the possibility that without customary use in state law nothing would prevent a future Walton County Board of County Commissioners (BCC) from adopting an ordinance doing away with customary use in the county or blocking off parts of the beach to be used by developers.
Ponder voiced his support for HB 631.
Adkinson pledged to execute the authority that the voters had granted him “with a common sense approach,” and mediate conflicts during the time the county is working to obtain the judicial determination. While deputies do not have the option not to respond when called by a property owner, Adkinson said he did not think arrests or “dragging people off the beach in handcuffs,” would be helpful to the county.
Jones commented that the BCC is steadfast on pursuing affirming customary use on the beaches and that staff has been directed to move forward with the HB 631 process. “We believe we have a substantial case,” he said, adding that if a better path forward comes along, “we’ll fight for that.”
One of a number of people coming forward to address Drake and company was a man who said he had lived in Walton County for 35 years in several locations south of the bay and had gone to the beach often during that time. He said his practice had been to go to a public beach walkover and turn either to the right or left and set up his chair on the beach in front of private homes. People just want, he said, to set up a chair and enjoy the beach.
“Thank you, sir, and that’s absolutely what I’m attempting to protect,” Drake replied.
Seagrove resident Leigh Moore said she thought Drake had “hit the nail on the head,” when he said that HB 631 had targeted Walton County in nullifying the county’s customary use ordinance. She asked if he knew of anyone filing legislation that would vest Walton County’s along with the existing ordinances of the other counties. Moore also asked if the judge providing the judicial determination would possibly approve customary use on some parcels and not others. She raised the possibility of a “patchwork” of parcels with regard to the application of customary use.
Drake responded that what he anticipated was giving the new process in HB 631 a “chance to work” so that the county wasn’t potentially faced with 900+ lawsuits, since that is the approximate number of beachfront properties.
Jones confirmed that the county would be seeking the judicial determination of customary use on all 26 miles of beachfront. Drake said his interpretation was that, given that circumstance, the judge “wouldn’t be able to parcel it out,” with a decision.
Jones invited citizens to send pictures to email@example.com documenting customary use on the beaches.
One speaker drew applause in presenting some documents as evidence that the Vizcaya beachfront development, which has been active in excluding beachgoers, does not “own the beach.” The paperwork was accepted in order to be checked and verified.
“I may be the first victim of this new law,” south Walton County resident and attorney Daniel Uhlfelder told the panel. Uhlfelder and fellow resident Justin Gaffrey had the experience the previous weekend, while sitting in the dry sand at the Dune Allen-area development, of being approached by deputies called by Vizcaya homeowners and being directed to move onto a wet sand area. Uhlfelder said he had been told that he would be arrested if he did not move. Instead of moving, he continued to sit on the dry sand for a number of hours. However, as of the meeting date no arrest had taken place.
Adkinson commented that if Uhlfelder wanted a “test case,” on the new law, “then let’s do that.”
“This is a bad law,” Uhlfelder said. He commented that the law had been passed because, “a bunch of people with a bunch of money went up to Tallahassee.”
“This is a terrible law,” Santa Rosa Beach resident Bonnie McQuiston told Drake. She identified the “biggest flaw,” of HB 631 as a “taking of public property,” including land under federal ownership in a number of areas of the county.
The panel concluded with some brief discussion of Gov. Scott’s Executive Order Number 18-202, entitled Preserving Public Beach Access, which had been issued four days earlier. While the order did not appear to apply to public use of dry sand areas on privately-owned beach property, Adkinson said the order had made a difference to him in signifying that “obviously the beach is different,” from other private property. The order provided the ability for law enforcement not to arrest the public as soon as they step onto private property on the beach, as opposed to what would be required in connection with trespassing in an inland neighborhood, he explained, giving deputies “some breathing room.”
Jones said the order said to him that Scott was saying, “you’ve got my attention.” He said he thought the order said that to the BCC as well.
Walton County plans to hold a public hearing for adoption of a new customary use ordinance in keeping with the procedure set forth in HB 631. A hearing date of Sept. 6 or 8 is anticipated. Information on the hearing will be forthcoming.
Drake closed the meeting with thanks to the panel members and to everyone who had attended.