The statute, which went into effect July 1, says local governments must get a judge’s approval to enforce a rare “customary use” law that refers to the general right of the public to use dry sand areas in Florida for recreation.
Sen. Kathleen Passidomo, R-Naples, who sponsored the Senate version of the bill, said it simply spells out a process for municipalities to follow to keep beaches open to the public rather than making up their own rules when a private beach owner wants to restrict access.
But the law has caused widespread confusion and angst, forcing Gov. Rick Scott to issue an executive order urging state attorneys “to protect Floridians’ constitutional rights to beach access” and doing one thing opponents feared most — emboldening private beach owners to cut off the public.
Nancy Sweeney, who owns a condominium on the west side of Singer Island’s Ocean Drive, said since 1996 she has used a well-worn path between Marriott’s Oceana Palms hotel and the under-construction Amrit Ocean Resort to get to the beach.
Property records show there is a 99-year lease on a 7.5-foot-wide easement for public beach access, but whether the beach is open to the public once people get there is less clear.
Instead, a municipality that wants to give people the ability to stroll through a private beach will have to seek a judge’s approval to enforce a rarely-used “customary use” law that refers to the general right of the public to use dry sand areas in Florida for recreation.
It’s a distinction that proponents argue is much ado about nothing – a tweak targeting an ongoing feud in the Panhandle’s Walton County between private beach owners angry about untoward activity by public beach goers on sand they own in front of their homes.
“People jumped on this like the sky was falling and totally misrepresented it,” said Sen. Kathleen Passidomo, R-Naples, who sponsored the Senate version of the bill. “If a community wanted to stop someone from roping off their beach, they can stop them by going through the process in the law.”
Still, tourism and wildlife preservation groups, including the Palm Beach County Tourist Development Council, are wary of the repercussions of the legal change, worried it will embolden private beach owners to restrict access and offend visitors.
“We are very much concerned,” said Glenn Jergensen, head of the Palm Beach County Tourist Development Council. “Beaches are what we are all about in Palm Beach County. We have 47 miles and it’s the number one activity people come here for.”
According to the Florida Department of Environmental Protection, the state has 825 miles of sandy beach. Spokeswoman Dee Ann Miller said DEP does not know how much of that is privately owned.
Palm Beach County owns 4.7 miles of beach frontage, while individual cities also have their own beaches, including 5 miles in Boca Raton, 1.3 miles of municipal beach in Delray Beach, 1,300 feet in Lake Worth, 960 feet in Boynton Beach and 750 feet in Lantana. The amount of privately-owned beach property in Palm Beach County was not immediately available through the property appraiser’s office.
Owners of private beaches are entitled to the sand on the landward side of the mean high tide line, while the public maintains access seaward of the mean high tide line.
In areas where public beaches are immediately adjacent to private beaches, it’s not uncommon for people to wander onto private property on walks, or even to set up beach chairs and coolers. On wide beaches the public use is typically not a problem, as it’s not occurring right up against the private owner’s home and there’s plenty of beach to go around.
But on beaches that aren’t regularly renourished or where there are many public access points with parking that offers an easy path to private beaches, it’s become a concern, Passidomo said.
“There have been some disputes as to where the property line is and it’s becoming more of a discussion in communities that are not renourishing and where there is very little sand between the ocean and the land,” Passidomo said. “The bill bears in mind that it is paramount that the public has access, but the local government needs to establish it through a process.”
The Florida Supreme Court has stated that the general public may continue to use the dry sand area of a beach for recreational activities if they have used the beach without interruption for many years.
Three counties have enacted customary use ordinances to maintain public access to private beach areas, including Walton, Volusia and St. Johns. Volusia and St. Johns had their ordinances grandfathered in, but Walton’s was abolished by the bill that becomes state law July 1.
Jay Liles, a policy consultant for the Florida Wildlife Federation, said the legal change puts more of a burden on local governments, and worries private beach owners may be encouraged to rope off their property or put up no trespassing signs because of the law.
“It’s not a step in the right direction as far as we’re concerned,” Liles said. “The only way I know to enforce private property is to put up a sign, and that’s just an off-putting signal to anyone visiting our beaches.”
Some Palm Beach County private beach owners said they have no intention of roping off their sand. Representatives from The Breakers Palm Beach and the Four Seasons Resort in Palm Beach said the law won’t affect their current beach operations.
Developer Jeff Greene, who owns Tideline Resort & Spa in Palm Beach, said he’d never rope off the beach because part of the appeal is people-watching and taking an oceanfront stroll.
“It gives it a certain energy when people are walking by the hotel,” Greene said. “People are walking to the Four Seasons or to Lake Worth Beach, people are playing in the water. It’s nice visually.”