I'm sorry - this is a long entry....
My family and I are the most recent victims of property owners threatening to call law inforcement to have individuals removed (like trash) from their property. Our incident occurred on 7/5/07 - near the public access walkway across from Pelayo Drive. We had started building sandcastles. We were in front of several homes - Jasmine Dune. We were basically straddling dry sand and wet sand. When we first arrived, the homeowners were not there. They came out later and put the top on their tent and started glaring at us. I actually was not out as early as the rest of my family. My family was building a castle to one side of the property owners tent - closer to the water, but a little further west of their tent. When I came out, my daughter got very excited and said she wanted to build a castle with me and started digging (straddling the dry and wet sand) more in front of the property owners tent. We're talking about kids here and she had no idea that the owners would take offense to her doing this. I hand set my towel down but was assessing the lay of the land and beginning to think I should suggest to her that we should move over the other way since folks were starting to populate their tent area so near us and we'd be blocking their view. Before I could really get any of this sorted out, a man stated that he was the owner of the property and he needed to ask that we move over. It all came to me then. I had noticed him strutting around, posturing and trying to figure out how to get the "trash" our from in front of his house. His attitude made me react in a less than compromising manner. So, I told him that it was my understanding that shoreline was not his property. He began to get more confrontational. My sister asked him to moderate his behaviour around her children - he was scaring them. He continued to hover over me and say things like - "You need to move that bottle of water and sunscreen.", "You know I can call the sheriff." and many other things. I finally told him that I planned to call the sheriff because he was frightening me and I felt his behavior should be observed by the authorities. I did call. The deputy came up and first spoke to the property owner for about 10 minutes far away from me. I walked up after the property owner left and asked if the deputy wanted to hear from me since I called him for two reasons. 1) was that I was frightned by the man's behaviour and 2) because I wanted clarification about the property issues. The deputy did not want to speak to me. He said he's talk to both of us at the same time to avoid having to speak twice. Final verdict: We were told to move by the sheriff. He said this man's property line is based on 20 years of the mean high tide line and that his property actually extended out in the ocean. We had a right to be on the wet sand only. So we tore down our kid's castles and moved on. Since then, our kid's have seen sheriff's trucks drive by and asked if they were coming to move us again.
Now that I've researched this some, I realise that a couple of things the duputy said were wrong and that a couple of things he said alluded to action we could take. From what I can tell the Tona-Rama ruling does apply here and that we have a right to be on the dry sand area there since it has historically been used by the public. But, if we are asked to leave (see judge's comments below) by the property owner, our only recourse would be to sue to prove that his property can be used by the public, consistent with the ways in which it has been used by them over the last 10 years. I know how this property has been used because I've been coming to the same house for 10 years and accessing that strecth of beach for those 10 years using the Public Access walkway. The deputy did say someting about a lawyer would have to decide it I wanted to question rights to traverse, etc. Someone's got to sue. I'm from Atlanta and not sure that I'll do it. I have several causes in my very backyard there that I'm very active in so it may not be feasable. We have written commissioners, board of tourism and many others. I did not speak to any of the members of that family after the deputy left. People like that will not change easily. They will need to be forced to by a court of law.
Bottom line is that people who build glass houses and people who build on the shores of barrier islands really don't own anything - mother nature will prove that to you every time.
Please let me know if you know of recent rulings that have changed the Tona-Rama ruling. I hate to see visitors treated this way. It has certainly put a damper on our stay. I do realize that living in a tourist town is very difficult and local's patience can be worn very thin. I will do my best not to let one man's bad behaviour clound my opinion of the other locals. We have so many good memories of this area and the people who have welcomed us! A sure way to make this better is to come to a clear understanding of these rights so that they don't have to be decided by deputies who certainly have better things to do.
Recent info adding to Tona-Rama:
http://myfloridalegal.com/ago.nsf/printview/45605C3FD5AA4AD985256BC70052F5BD
Question Three
Your third question relates to the use of local law enforcement by private property owners to enforce trespass laws to curtail or discourage the public's right of customary use to the dry sand areas of the beach.
The City of Destin is authorized to regulate the dry sand portions of the beach within its jurisdictional boundaries under the terms discussed above. However, portions of this property are subject to private ownership and until a court establishes a "customary right of use" by the public in such real property, the fee owners thereof may make complaints of trespass to local law enforcement officers as they occur.
Pursuant to section 810.09(1)(a), Florida Statutes, "[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 . . . commits the offense of trespass on property other than a structure or conveyance.[19]
Section 810.09(2)(b), provides that:
"If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person . . . the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083."[20]
Thus, to commit a trespass, the offender must defy an order to leave that has been personally communicated to him by the owner of the premises or some other authorized person.
This office, in Attorney General's Opinion 90-08 considered whether on-duty police officers could be pre-authorized to act as the agents of a private landowner for the purpose of communicating to alleged trespassers an order to leave the private property pursuant to section 810.09(2)(b), Florida Statutes. The facts of that opinion involved the Jupiter Inlet Beach Club, Inc., which owned a parcel of land within the Town of Jupiter Inlet Colony. Access to the lands and the facilities located thereon was limited to members and guests of the private club. Representatives of the club proposed to authorize, in advance of any actual incident, all town police officers to act as the club's agent in ordering alleged offenders to leave the beach club's premises. This office rejected the proposal to authorize local law enforcement officers to be designated as the agents of private persons. As the opinion noted, the Florida Constitution prohibits the use of public funds for a private purpose.[21] The pre-authorization of on-duty law enforcement officers to act as agents of private landowners in warning individuals to leave private property appeared to this office to serve primarily a private, not public, purpose.
Thus, it is my opinion that private property owners who hold title to dry sand areas of the beach falling within the jurisdictional limits of the City of Destin may utilize local law enforcement for purposes of reporting incidents of trespass upon their property on a case-by-case basis. However, local law enforcement officers may not be pre-authorized to act as agents of private landowners for the purpose of communicating orders to their property on a case-by-case basis. However, local law enforcement officers may not be pre-authorized to act as agents of private landowners for the purpose of communicating orders to leave private property to alleged trespassers pursuant to section 810.09(2)(b), Florida Statutes.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tgh
