Who Owns the Beach? Part 3 – So What Can Local Governments Do?

private-beach

This is part 3 of a series of posts on beach access in Walton County, Florida.

Attorney General’s Opinion 2002-38 provides the clearest determination of the things that local government can control on the beaches within their jurisdiction. Opinion 2002-38 was written in answer to several questions posed by the City of Destin. Destin had passed an ordinance regulating certain activities on the beach, and wanted clarification on what they could and could not regulate, and whether the degree of regulation was dependent on the ownership of the property. Destin also asked whether their ability to regulate depended on a “customary use” determination pursuant to Tona-Rama.

Destin’s beach management ordinance covered the soft sand portion of the beach seaward of the permanent vegetation and landward of the mean high water line. It prohibited glass containers on the beach, established restrictions on animals on the beach, restricted wheeled vehicles on the beach, prohibited open fires, and established a number of other restrictions on conduct and structures on the beach.

The attorney general gave the opinion that the City of Destin could regulate, in a reasonable manner, the beach within its corporate limits. Any regulation must have a rational relation to, and be reasonably designed to, accomplish a purpose necessary to protect the public health, safety, and welfare. The local government could not exercise its police power in an arbitrary, capricious, or unreasonable manner, but the ability to protect the public health, safety, and welfare was not dependent on a customary use determination under Tona-Rama.

The final question raised by the City of Destin was the responsibility of local law enforcement to enforce trespass laws to discourage the public’s use rights on the dry sand of the beach. The attorney general noted that, without a judicial determination of customary use, private owners could complain to local law enforcement about trespassers. Under Florida Law, “[a] person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance . . . [a]s to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation . . . commits the offense of trespass on property other than a structure.” Section 810.09, Fla. Stat. Thus, to commit a trespass, the offender must defy an order to leave that has been personally communicated to them by the owner or some other authorized person. Opinion 2002-38 (citing Opinion 90-08) advised that a property owner could not pre-authorize law enforcement personnel to act as their agents for the purpose of communicating orders to leave private property. Private property owners can report trespass to law enforcement on a case-by-case basis, but there is no trespass unless they have given the offender notice to leave the property. “Posting” has very specific requirements, set out in Section 810.11, Fla. Stat. A sign like the one accompanying the first part of this article does not meet those requirements and would not constitute notice to leave.

Under the guidelines set by the Attorney General’s office, Walton County can legally regulate both conduct and structures on the beach, as long as the regulations are to protect the public health, safety, and welfare. Walton County can prohibit signs, fences, and other structures on the beach, pass regulations governing beach vendors, and outlaw breach of the peace and disorderly conduct. Carefully crafted and enforced, regulations like these might go a long way toward addressing the complaints of both the beach front owners and those who only wish to use the beach for recreation.