Customary Use Facts

The Facts

Two years ago, I sponsored a technical bill dealing with the Marketable Record Title Act. As the bill moved through the process, an amendment was added to address an issue that had arisen in Walton County dealing with “Customary Use.” (Customary Use is a common law judicial doctrine as established by Florida’s Supreme Court that provides for the recreational use of privately owned land by the public if the recreational use has been “ancient, reasonable, without interruption, and free from dispute).

Walton County had passed an ordinance in violation of Florida’s customary use common law that had been in place since the 1800s which provided that matters dealing with “customary use” may only be determined by the courts. The amendment to my Marketable Record Title Act bill created a preemption to the state for all matters dealing with customary use. I did not agree to that amendment because I believe that only the courts should determine matters dealing with “customary use”, not the state nor local government. So I “killed” my own bill. Last session, in response to the issue, I met with representatives of Walton County and the beachfront property owners, and together with the Real Property Section of the Florida Bar, we collaboratively came up with a bill to address the issue. The bill passed with a majority vote in the House and the Senate and was signed into law by the Governor. Shortly thereafter, both sides to the issue reneged on the agreed upon bill. Property owners filed a lawsuit in federal court to declare customary use unconstitutional and the county began to both vocally and vociferously criticize the bill.

To compound the issue, as the upcoming election began to take shape, organizations funded by Democratic operatives began attacking the bill by misrepresenting to the public the affect of the bill. The media picked up those attacks and reports began to circulate that the bill was intended to privatize Florida’s beaches. Nothing could be further from the truth.

The new law is a simple process bill that gives local governments the tools they need to provide customary use access to the public on private land adjacent to the public beach.

Briefly, the process provides that a governmental entity that wishes to assert the use must have a public hearing to adopt a notice of intent to affirm the existence of a recreational customary use on private property. The form of the notice is detailed in the statute. During the hearing the governmental entity needs to establish that the use is “ ancient, reasonable, without interruption and free from dispute” (as is the case under the common law). Within 60 days after the notice is adopted at the public hearing the governmental entity needs to file a complaint in Circuit Court for a Declaration of Recreational Customary Use on the affected properties. The affected property owners have the right to intervene in the proceeding and the court must determine whether the evidence presented by the governmental entity demonstrates that the recreational customary use identified in the notice of intent complies with the statutory requirements of ancient, reasonable, without interruption and free from dispute.

There is nothing in the bill that authorizes anyone to block access to a beach or to put up ropes, signs or fences or any other obstruction on the beach. There is nothing in the bill that authorizes law enforcement or mandates anyone to arrest or remove anyone from the beach. There is nothing in the bill that set forth a “line” of where the public is allowed or is not allowed to be. The bill doesn’t in any way change the law of this state pertaining to customary use of Florida’s beaches that has been in place since the beginning of statehood. The text of that bill that was signed into law is below.

It is disheartening to me that anyone would use scare tactics or promote patently false information for political purposes about something so sacred as the public’s right of access to Florida’s beaches. This kind of political maneuvering only serves to cause a great deal of anxiety and stress for our citizens and confirms their distrust of the political process.

I would be happy to meet with any constituent who is concerned with the issue.

The 2018 Florida Statutes

163.035 Establishment of recreational customary use.—

(1) DEFINITION.—The term “governmental entity” includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority.

(2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A governmental entity may not adopt or keep in effect an ordinance or rule that finds, determines, relies on, or is based upon customary use of any portion of a beach above the mean high-water line, as defined in s. 177.27, unless such ordinance or rule is based on a judicial declaration affirming recreational customary use on such beach.

(3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity that seeks to affirm the existence of a recreational customary use on private property must follow the procedures set forth in this subsection.

(a) Notice.—The governing board of a governmental entity must, at a public hearing, adopt a formal notice of intent to affirm the existence of a recreational customary use on private property. The notice of intent must specifically identify the following:

1. The specific parcels of property, or the specific portions thereof, upon which a customary use affirmation is sought;

2. The detailed, specific, and individual use or uses of the parcels of property to which a customary use affirmation is sought; and

3. Each source of evidence that the governmental entity would rely upon to prove a recreational customary use has been ancient, reasonable, without interruption, and free from dispute. The governmental entity must provide notice of the public hearing to the owner of each parcel of property subject to the notice of intent at the address reflected in the county property appraiser’s records no later than 30 days before the public meeting. Such notice must be provided by certified mail with return receipt requested, publication in a newspaper of general circulation in the area where the parcels of property are located, and posting on the governmental entity’s website.

(b) Judicial determination.—

1. Within 60 days after the adoption of the notice of intent at the public hearing, the governmental entity must file a Complaint for Declaration of Recreational Customary Use with the circuit court in the county in which the properties subject to the notice of intent are located. The governmental entity must provide notice of the filing of the complaint to the owner of each parcel of property subject to the complaint in the same manner as is required for the notice of intent in paragraph (a). The notice must allow the owner receiving the notice to intervene in the proceeding within 45 days after receiving the notice. The governmental entity must provide verification of the service of the notice to the property owners required in this paragraph to the court so that the court may establish a schedule for the judicial proceedings.'

2. All proceedings under this paragraph shall be de novo. The court must determine whether the evidence presented demonstrates that the recreational customary use for the use or uses identified in the notice of intent have been ancient, reasonable, without interruption, and free from dispute. There is no presumption regarding the existence of a recreational customary use with respect to any parcel of property, and the governmental entity has the burden of proof to show that a recreational customary use exists. An owner of a parcel of property that is subject to the complaint has the right to intervene as a party defendant in such proceeding.

(4) APPLICABILITY.—This section does not apply to a governmental entity with an ordinance or rule that was adopted and in effect on or before January 1, 2016, and does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance or rule adopted before July 1, 2018.

History.—s. 10, ch. 2018-94.