You Have to Join MICA to get to the Beach?

(original published by the FSU Law School)

FLORIDA BEACH ACCESS: NOTHING BUT WET SAND?

 

"No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches"

 

I INTRODUCTION

In City of Daytona Beach v Tona-Rama, Inc, the Florida Supreme Court recognized the doctrine of custom as a means by which the public can establish rights to utilize the dry sand areas of Florida beaches for traditional recreational uses Although twenty-five years have passed since the Supreme Court's decision, the issue of adequately preserving public beach access in Florida persists In particular, Florida cities continue to struggle with balancing the tension between the rights of private beachfront landowners to exclude persons from their property and the rights of the public to utilize the dry sand areas of Florida beaches

Public beach access is especially important in a state such as Florida that has approximately 1,200 miles of general coastline, and more than 2,200 miles of tidal shoreline An estimated eighty-percent of Florida's population lives near the coast, illustrating the significance and beauty of Florida's beaches In addition, more than forty-one million people visit Florida annually Indeed, while tourists visiting Florida have the opportunity to experience a multitude of diverse attractions, Florida's beaches remain one of the most popular attractions

To save public access to this critical resource, this Comment argues that in the absence of any state legislation adequately preserving public beach access, local governments should adopt ordinances protecting the public's customary right to utilize the dry sand areas of their beaches

II BEACH ACCESS
IN FLORIDA

The Florida State Constitution states, in pertinent part, that:

he title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people Sale of such lands may be authorized by law, but only when in the public interest Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest

Thus, like most states, Florida recognizes the mean high water line as the boundary between public trust land and private property Florida law also provides that a policy of the State Comprehensive Plan shall be to "ensure the public's right to reasonable access to beaches" While this provision does not mandate public easements in the dry sand areas of beaches, it does represent legislative acknowledgement of the significance of public beach access in Florida

Additional statutes provide varying degrees of mandated public beach access in Florida For example, perpendicular public beach access is a requirement for construction within a coastal building zone "here the public has established an access way through private lands to lands seaward of the mean high tide or water line by prescription, prescriptive easement, or any other legal means" If the developer impedes on this access way, he or she must provide a comparable alternative

Likewise, section 161053, Florida Statutes, which deals with the regulation of construction control setback lines, contains language that promotes the protection of public beach access In particular, section 161053(1)(a) states that:

the beaches in this state and the coastal barrier dunes adjacent to such beaches represent one of the most valuable natural resources of Florida and it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access

Florida courts have also recognized the importance of Florida's beaches to the public For example, in White v Hughes, the Florida Supreme Court stated that:

here is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto The lure of the ocean is universal; to battle with its refreshing breakers a delight The attraction of the ocean for mankind is as enduring as its own changelessness The people of Florida-a State blessed with probably the finest bathing beaches in the world-are no exception to the rule
We love the oceans which surround our State
We, and our visitors too, enjoy bathing in their refreshing waters

Recently, however, scholars have noted an increased tension between private property rights and public access to beaches In particular, one commentator has remarked that:

private ownership and control of the dry sand and uplands threatens public enjoyment of beaches in two ways First, private littoral owners can restrict the use of the dry-sand area This part of the beach is essential to recreation Without it the public is left only the wet-sand portion of the beach to support its normal beach activities Second, owners can isolate many beaches by denying public access across private uplands

In Florida, perhaps an augmented tension between private and public rights regarding adequate public beach access and the use of the dry sand areas exists because the majority of Florida's beaches are privately owned

Scholars and legal practitioners have used several legal theories to address the lack of public beach access including eminent domain, express or implied dedication, prescription, the public trust doctrine, and custom Florida courts have recognized implied and express dedication as means to secure public rights in the dry sand areas for traditional recreational activities and foreshore access

Unfortunately, dedication has not proven to be effective in adequately providing the public with a right to utilize the dry sand areas of Florida beaches Dedication is ineffective for two reasons: first, because public use of the dedicated property is regarded as a license, revocable by the private landowner; and second, because dedication involves a time-consuming tract-by-tract process Thus, prescription and customary rights are the two primary ways to establish public beach access to Florida beaches

A Prescription

In Downing v Bird, the Florida Supreme Court set forth the elements required to establish a prescriptive easement in Florida According to Downing, to establish a prescriptive right a user must prove by clear, definite, accurate, and positive proof:

(1) that the user has made a certain particular and actual use of lands owned by another, (2) that such use has been continuous and uninterrupted for the full prescriptive period of 20 years, (3) that during the whole prescribed period such use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner, (4) that such use related to a certain limited and defined area of land or, if for a right-of-way, the use was of a definite route with a reasonably certain line, width and termini, (5) that during the whole prescribed period such use has been adverse to the owner; that is, (a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner, (b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment and (c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made

Furthermore, the court in Downing stated that "acquisition of rights by one in the lands of another, based on possession or use, is not favored in the law and the acquisition of such rights will be restricted" Consequently, courts must resolve any doubts concerning the creation of a prescriptive right in favor of the private landowner

Moreover, it is well established in Florida law that a person cannot acquire a prescriptive easement where the use is by the express or implied permission or license of the private landowner Still, "although there is a presumption that a use is permissive, that presumption is not conclusive Rather, the courts should look to whether the use was beneficial to the actual owner, or was instead an interference with the owner's rights"

Florida courts have, however, recognized that the public may establish a right to use the dry sand areas of beaches through prescription However, in City of Miami Beach v Undercliff Realty & Investment Co, the court stated that "the fact that the upland owners did not prevent or object to such use is not sufficient to show that the use was adverse or under claim of right" Similarly, in City of Miami Beach v Miami Beach Improvement Co, the court held that a prescriptive right to use the beach had not been established because "the public use of the beach was consistent with and not antagonistic to the ownership of the property" Thus, while some courts have recognized a public prescriptive easement in beach land, Florida courts have consistently adhered to a strict adversity requirement The courts' strict adherence to an adversity requirement has made satisfying the elements for a prescriptive easement difficult under Florida law

In City of Daytona Beach v Tona-Rama, Inc, the Florida Supreme Court specifically addressed whether the public had acquired a prescriptive easement in a certain dry sand area of Daytona Beach The plaintiffs in the case sought declaratory and injunctive relief to prevent the construction of an observation tower on the beach's dry sand area The observation tower was to complement a pre-existing public pier located on the subject property The tower's circular foundation was to be seventeen feet in diameter, while the diameter of the actual tower was to be four feet According to the court, the tower was to occupy only 225-230 square feet of the 15,300 square feet that the defendant actually owned By the time the Florida Supreme Court heard the case, the City of Daytona Beach had already issued the building permit, and the property owner had completed construction of the $125,000 tower

In attempting to block construction of the observation tower, the plaintiffs alleged, in part, that through continuous use for more than twenty-years, the public had acquired a prescriptive right to use the dry sand area that the observation tower would occupy In addressing this issue, the court noted that:

he beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequence of title The sandy portion of the beaches are of no use for farming, grazing, timber production, or residency-the traditional uses of land-but has served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public The interest and rights of the public to the full use of the beaches should be protected

Furthermore, the court recognized:

the propriety of protecting the public interest in, and right to utilization of, the beaches and oceans of the State of Florida No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches And the right of the public of access to, and enjoyment of, Florida's oceans and beaches has long been recognized by this Court

Nevertheless, the court held, based on the facts of the case, that the use of the dry sand area was "not against, but was in furtherance of, the interest of the defendant owner Such use was not injurious to the owner and there was no invasion of the owner's right to the property" Furthermore, the court proclaimed that the public cannot obtain an easement by prescription unless a landowner loses something Accordingly, the court reversed the district court and held that the public had not established a prescriptive easement

Although the Florida Supreme Court in City of Daytona Beach v Tona-Rama, Inc, reversed the lower court's finding of a public prescriptive easement in the dry sand, it did recognize the doctrine of custom as a means to establish public beach access in Florida In particular, the court noted:

If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public

Further, the court stated:

he general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years

In recognizing the doctrine of custom, the court relied on decisions from Oregon and Hawaii

Shortly after Tona-Rama, the customary rights issue was once again raised in a Florida courtroom In Wymbs v Arvida Corp, the court addressed whether a class of persons had acquired public rights either under the doctrine of prescriptive use or custom to continue using a path, and sandy beach accessed by traversing through private property The court noted that "he establishment of customary rights requires proof as to a longer period of time than prescriptive rights as the former requires proof of use from 'time immemorial' whereas the latter requires proof of use for twenty years" Moreover, the court clearly summarized the requirements necessary to establish a customary right under Florida law In particular, the court stated that "ustomary public rights require a showing that the use of land is (1) ancient, (2) reasonable and peaceful, (3) exercised without interruption, (4) of certain boundaries, (5) obligatory or compulsory, (6) not inconsistent with other customs or law, and (7) by a multitudinous number of persons" Although the court ultimately found that the plaintiffs failed to establish either a prescriptive or customary right, the case signifies the acceptance by at least one lower state court of the doctrine of custom recognized in Tona-Rama

Nevertheless, some commentators have suggested that there are short-comings in the Florida Supreme Court's opinion in Tona-Rama In particular, one commentator has noted that, although the decision seems to demonstrate a judicial policy favoring public use of privately owned beaches, the court did not adequately define the period of time required to establish a customary right In addition, the court did not clearly indicate the geographic scope of its decision

More recently, however, in Reynolds v County of Volusia, the Fifth District Court of Appeal clarified the geographic scope of the supreme court's opinion in Tona-Rama The court stated that the doctrine of custom requires "courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past" Thus, unlike Oregon, the doctrine of custom according to Reynolds is applied on a tract-by-tract basis in Florida

Despite the Florida Supreme Court's recognition of custom, one issue not addressed in Tona-Rama was the potential liability, if any, of private landowners for injuries sustained by the public while utilizing the dry sand areas of privately owned Florida beaches Liability was simply not at issue in the case However, one can easily imagine the concern beachfront landowners in Florida may have regarding potential liability for injuries, especially in light of the court's decision in Tona-Rama prohibiting a private landowner from interfering with the public's customary right to use the dry sand area

Analyzing the issue from a strict tort law perspective, private beachfront landowners should not have any liability, under most circumstances, for injuries sustained by members of the public while using the dry sand areas of privately owned Florida beaches The four basic requirements for negligence under tort law are (1) duty, (2) breach, (3) causation, and (4) damages In sum, "o state a cause of action in negligence, a complaint must allege ultimate facts which establish a relationship between the parties giving rise to a legal duty in the defendant to protect the plaintiff from the injury of which he now complains"

There are three classes that define the duty a landowner owes to an individual: (1) trespasser, (2) invitee, and (3) licensee, and generally speaking, one must not:

wilfully and wantonly injure a trespasser; he must not wilfully and wantonly injure a licensee, or intentionally expose him to danger; and, where the visitor is an invitee, he must keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware

Florida courts have defined wanton and willful misconduct as "conduct in reckless disregard of the safety of others"

Florida courts have defined licensees as "persons who choose to come upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances" In contrast, Florida courts have stated that:

a finding of invitee status turns upon the coexistence of two factors, reflecting the viewpoint of each of the two parties involved: (1) The landowner must so conduct his activities on his property, by way of carrying out his business or arranging his premises, that (2) it reasonably appears to the person coming onto them that he has been welcomed or invited there for the visitor's intended purpose and is therefore entitled to expect that the owner has taken reasonable care for his safety

As for uninvited licensees, Florida courts have held that "n uninvited licensee is neither an invitee nor a trespasser, but rather, a legal status in between whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner" Accordingly, a landowner owes a duty to an uninvited licensee:

to refrain from wanton negligence or willful misconduct which would injure , to refrain from intentionally exposing to danger, and to warn of a defect or condition known to the landowners to be dangerous when such danger is not open to ordinary observation by the licensee

Given the tort law principles discussed above and the Florida Supreme Court's language in Tona-Rama prohibiting beachfront landowners from interfering with a person's customary right to use the dry sand, members of the public should be, in most circumstances, viewed as uninvited licensees, rather than invitees Accordingly, a private beachfront landowner would have the duty to refrain from wanton negligence or willful misconduct which would injure the public, to refrain from intentionally exposing the public to danger, and to warn members of the public of defects or conditions known to the landowner to be dangerous, when such danger is not open to ordinary observation by the licensee In addition, under Tona-Rama, a beachfront landowner would also have a clear obligation to refrain from interfering with the public's customary use of the dry sand areas Therefore, a private beachfront landowner would not likely be liable for an injury sustained by a member of the public using the dry sand area absent direct injurious actions by the landowner

Clearly, there are significant advantages to using the doctrine of custom to establish public beach access over other approaches, especially prescription For example, "consent of the owner to the use, which would destroy the adverseness necessary to establish prescription, is not similarly effective to defeat a right based on custom" Thus, beachfront landowners would be unable to defeat a public easement claim, based on the doctrine of custom, by arguing that they had granted permission for past public use Furthermore, any arguments made by beachfront landowners that they will be exposed to overwhelming personal liability for injuries sustained by the public while utilizing the dry sand should not weaken the application of the doctrine In addition, the doctrine has withstood a takings challenge brought by a beachfront property owner in Oregon Accordingly, the doctrine of custom, as recognized by the Florida Supreme Court in Tona-Rama, remains an effective legal tool for protecting the public's right to use the dry sand areas of Florida beaches

III A MODERN DAY EXAMPLE: DESTIN, FLORIDA

Recent developments over the past several years in Destin, Florida, exemplify the tension between private rights of beachfront landowners and the public's right to utilize the dry sand areas of Florida beaches During spring break this past year, two fifteen-year old teenagers were chased off a beach in Destin by a landowner claiming that they were on private property Scared by their en counter with the threatening landowner, the two teenagers did not return to the beach during the remainder of their vacation in Destin Such situations are the direct result of the Florida State Legislature's failure to adequately protect the public's right to utilize the dry sand areas for traditional recreational purposes In areas along Florida's "panhandle," the issue is especially important since tidal fluctuations are so minute that the public is basically required to constantly walk in wet sand if there is no public right to use the dry sand areas

As a result of incidents like the one described above, the Destin City Council asked the city's land use attorney to research what steps, if any, the city could take to protect the public's right to utilize the dry sand area above the mean high tide line The attorney determined that, based upon the Florida Supreme Court's decision in City of Daytona Beach v Tona-Rama, Inc, he believed the public has established a customary right to utilize the dry sand areas of Destin beaches Accordingly, the attorney recommended that the city adopt an ordinance protecting the public's long-standing customary use of the dry sand areas of Destin beaches As part of the ordinance adoption process, the attorney also advised the city to gather evidence supporting the public's long-standing use of the dry sand areas, such as testimony of individuals who have used Destin beaches for decades

The findings and recommendations of the city's land use attorney were front-page news in Destin, and spurred reactions from local residents For instance, one beachfront landowner threatened litigation and proclaimed any action by the City Council to "take control of private property is unethical and immoral" In contrast, several people, both beachfront landowners and tourists, wrote in support of the City Council's actions, thereby trying to protect the public's right to utilize the dry sand area of Destin beaches Moreover, a general poll conducted by the city's newspaper showed that a majority of respondents favored unlimited access to area beaches

Despite legal precedent and the Destin City Council's initial promise to protect the public's right to utilize the dry sand areas by passing a beach access ordinance, the City Council has been somewhat slow to act The City Council's hesitancy is, in part, likely due to litigation threats from beachfront landowners Rather than pass a beach access ordinance, the City Council voted unanimously to ask State Representative Jerry Melvin to coordinate a meeting among groups and individuals affected by the beach access issue More recently, however, the City Council did approve the sending of ordinances regarding beach vendors and the public's right to use the dry sand to the city's planning commission While the City Council should be applauded for attempting to address the tension between the rights of private beachfront landowners and the public's right to utilize the dry sand areas of Destin beaches, whether the City Council will adopt any adequate measures to protect public beach access remains unclear

IV RECOMMENDATION
AND CONCLUSION

Despite numerous calls during the past twenty-five years for legislation at the state level to protect the public's right to utilize the dry sand areas of Florida beaches, state legislators have failed to do so In the absence of adequate state legislation, local governments and the judiciary have the burden and responsibility to protect public beach access In City of Daytona Beach v Tona-Rama, Inc, the Florida Supreme Court recognized the doctrine of customary use as a means by which the public may secure rights to utilize the dry sand areas of Florida beaches for traditional recreational activities Despite the supreme court's ruling in Tona-Rama twenty-five years ago, the issue of whether the public has a right to utilize the dry sand areas of Florida beaches persists

In a state such as Florida, which is a favorite tourist destination known for its beautiful beaches, the issue of adequate public beach access should be a priority Few, if any, of the state's tourists are probably aware that the majority of Florida beaches are privately owned One can easily imagine the surprise and shock of unsuspecting visitors to Florida who are threatened with arrest for trespassing because the beach they are enjoying is private property Indeed, the frequency of such incidents is likely to increase, absent adequate protective measures, as tourists and coastal residents place more and more pressure upon Florida's coastal resources Florida and its residents should not, and cannot afford to, "bite the hand that feeds," so to speak In light of the State Legislature's failure to adequately protect public beach access, local governments should adopt ordinances protecting the public's long-standing customary use of the dry sand areas of their beaches Without such measures, the Florida public may very well be left with nothing but wet sand