Led away in Handcuffs

From this link written in 2003 are some exerpts. I know it's a little long and we're all a little tired reading all the legal stuff but I've bolded key points to help make it easier to see the point that I will be making at the end as it applies to the current situation in Destin.​

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"The City of Destin has been grappling with the beach turf wars for the past few years, trying to keep the beachfront landowners happy and trying to satisfy the need to preserve the publics access to the beach. During 1999 and 2000, there were three ordinances proposed to address the public beach access problems:​

Beach Management Ordinance
Pedestrian Zone Ordinance
Dry-Sand Buffer Zone Ordinance​

[FONT=CenturySchoolbook,Italic]1. The Beach Management Ordinance[/FONT]​

The proposed beach management ordinance applied to beach concessionaires and vendors. This ordinance restricted the ability of beach vendors to set up umbrellas and chairs (known as beach set-ups") close to the waters edge to avoid blocking the publics lateral access along the beaches.62 The Destin City Council unanimously passed the beach management ordinance, prohibiting rental beach set-ups within twenty feet of the water, applying only east of Henderson Beach State Park where the beaches are narrower.

[FONT=CenturySchoolbook,Italic]2. The Pedestrian Zone Ordinance[/FONT]​

The proposed pedestrian zone ordinance, proposed by beachfront landowners as a compromise, established a ten-foot area for pedestrian lateral access along the beach, additionally prohibiting beach set-ups in the pedestrian zone. This ordinance was to be implemented by the landowners voluntarily granting easements to the City of Destin.However, after public comments that the ordinance could effect a taking, the ordinance was superfluous, and the ordinance could create enforcement problems, the proposed ordinance failed to pass for lack of legislative sponsorship.

[FONT=CenturySchoolbook,Italic]3. The Dry Sand Buffer Zone Ordinance​

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The proposed dry-sand buffer zone ordinance was based on Florida's doctrine of customary usage announced in [FONT=CenturySchoolbook,Italic]Tona-Rama [/FONT]and proposed by the Destin City Land Use Attorney.This ordinance carved out a twenty-five foot buffer zone from the most seaward permanent structure on the private beach while leaving the rest open for public use. Attempts were made by the Destin City [/FONT]Land Use Attorney to build a record and collect information concerning the publics customary use of the each. Specifically, the City sought historical and archaeological information to

establish that the beach had been used by the public for time immemorial. The ordinance received opposition from private beachfront landowners, coupled with threats of litigation from the Southeastern Legal Foundation, Inc. to the Destin City Council that it would fight the City if the ordinance passed.After numerous fact-gathering workshops and public comments voicing concern over this ordinance, the ordinance failed to pass.​

[FONT=CenturySchoolbook,Italic]B. No Disturbances, No Harm​

Instead of opting to pass a pedestrian zone ordinance or a dry sand buffer ordinance to deal with the beach turf wars, the City of Destin decided to leave the issue to the Okaloosa County Sheriffs Office.72 The Sheriffs Office uses the debris line in the sand as a surrogate for the mean high water line, allowing the public leeway of ten to fifteen feet landward.If the public beachgoer goes ten to fifteen feet landward of the debris line and is not creating a disturbance or misconduct, he is left alone.However, if the public beachgoer goes ten to fifteen feet landward of the debris line and the private beachfront property owner asks the Sheriffs Office to ask the party to leave, then the deputies will ask the public beachgoer to leave.If the public beachgoer refuses, then he will be given a Notice to Appear in court. ​

The Destin City Council, although interested in finding a compromise for beachfront property owners and the public, was likely worried most about the possible cost of litigation if they were to pass the dry-sand buffer zone ordinance. Small local governments, such as Destin, do not have the financial resources to battle large public policy interest groups that have bottomless spending accounts, even if the ordinance is supported by the doctrine of customary use announced in [FONT=CenturySchoolbook,Italic]City of Daytona Beach v. Tona-Rama, Inc.[/FONT]

In 2002, the Destin City Mayor and Okaloosa County Sheriff requested an advisory opinion from the Office of the Attorney General for the State of Floridaregarding the beach management ordinance, doctrine of customary use, and use of the Sheriffs Office in enforcement.The Attorney General for the State of Florida responded:

[ ] The City of Destin may regulate in a reasonable​

manner the beach within its corporate limits to protect the public health, safety, and welfare. This regulation must have a rational relation to and be reasonably designed to accomplish a purpose necessary for the protection of the public. The city may not exercise its police power in an arbitrary, capricious, or unreasonable manner. Such regulation may be accomplished regardless of the ownership of this area, with the exception of state ownership, and without regard to whether the public has been expressly or impliedly allowed to use that area of the beach by a private property owner who may hold title to the property.​

[ ] The right of a municipality to regulate and control dry sand beach property within its municipal boundaries is not dependent on the finding of the Florida Supreme Court in City of Daytona Beach v. Tona-Rama, Inc.​

[ ] 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 as they occur.​

The citys beach management ordinance ​

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does not expressly specify that it be applied only on public land or land on which the public has been expressly granted a right of use and access [T]he ordinance as written applies to all areas falling within the definition of beach, regardless of whether such areas are located on public or private property and regardless of whether the public has been expressly or impliedly allowed to use such areas by a private property owner.​

The Attorney General advised that whether th[e] customary right of use [announced in [FONT=CenturySchoolbook,Italic]City of Daytona Beach v. Tona-Rama, Inc.] exists in a particular piece of property is a mixed question of law and fact that must be resolved judicially. ​

In his advisory opinion, the Attorney General recognized the importance of the common-law doctrine of customary use and opined that it may be relied on for [FONT=CenturySchoolbook,Italic]ad hoc determinations of the degree of customary and ancient use of the beach.85 Finally, the Attorney General stated that:[/FONT]​

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 [FONT=CenturySchoolbook,Italic]on a case-by-case basis​

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. 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 trespasses ​

It is still to be determined what this means for the preservation of the publics right of beach access. By keeping the dry-sand area buffer zone ordinance off the ordinance books, the City appeases the private beachfront property owners. Additionally, by relaxing the enforcement of its trespass law using local law enforcement on a case-by-case basis, the City calms the public's fear of legal action from frolicking too far landward of the debris line. Although at this time Destin has declined an invitation into the litigious side of determining the scope of the doctrine of customary use, the City of Destin, as a test case, is the second element that creates "the perfect storm" for Florida to test the strength of its policy of preserving public beach access."​

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Here's my take on the situation in Destin: It certainly appears that they have an "ordinance" that doesn't really exist (never legally adopted). They have turned over any trespass interpretation over to the Sheriff's department. ​

I guess you could call the policy, "Destin's desire for the beach to be public near the water line so everyone can use it even though Destin hasn't proved it in court yet on a case by case basis and know that the Florida attorney general won't back Destin".​

But the Florida's attorney general states that the sheriff MUST arrest a person if that person is on private property and is told to leave by the owner and does not (from above)....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 [FONT=CenturySchoolbook,Italic]on a case-by-case basis[/FONT]​

Am I missing something?





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They still have not fixed this in Destin I have a court date on the 17th of August for the judge to determine if the landowner had tresspass authority within the 20 foot inshore of the wet sand zone. I am still under a restraining order becuse I was fishing in the wet sand.

Bobby J, as you can see from my previous post, it seems to me that the Destin Mayor and Council have put an unfair legal burden on the Sheriff's department. It certainly appears to me that a private property owner could sue the sheriff's department for not enforcing the current laws on record.

That is if an owner asked a person on their private property to leave and the sheriff refused to ask the person to leave, it certainly appears to me, according to the attorney general that the sheriff did not perform their "sworn duty".

The Florida attorney general was quite specific that public access had to be proved on a case by case basis because it is a combination of "law" and of "fact". It looks like Tona-Roma sets the "law" such as it is, but that's only part of the end result that you're ultimately looking for.

It is really not that clear to me...That's why it is such a mess. A good lawyer will eat that up

....So it looks like the access is public. Apparently nobody contemplated that the public access would lead to a private beach. In fact, it sort of implies that the beach is public, why else would you worry about a public access? Just so you could keep going, trudging through the wet sand to somewhere else? But it isn't spelled out. An attorney might have fun with this, though.

Yippie,
You said, "Now, go back and read the letter from the Mayor."
I've got an open mind...which letter are you referring to and can you give me the link? Thanks.

It was posted on this forum. Go look for my post right before JoeMammy's posts. You will find it.

Honestly, after the reply from the Florida attorney general, do you really think this "letter" simply wipes the slate clean and justify's Destin's position? Obviously you do.

Why not just 5 feet? Why not 50 feet? Where's the legal basis for 20 feet? It's an arbitrary number Destin came up with period.

Jay still needs a good lawyer.

Honestly, after the reply from the Florida attorney general, do you really think this "letter" simply wipes the slate clean and justify's Destin's position? Obviously you do.

Why not just 5 feet? Why not 50 feet? Where's the legal basis for 20 feet? It's an arbitrary number Destin came up with period.

Jay still needs a good lawyer.

I was going to post the link here to the governing Florida statute, but the link didn't cooperate. It is Florida Statutes Chapter 177 Part II. Mean High Water is an average of the high waters over a 19-year tidal cycle. It takes a surveyor to determine the MHW, if I am reading the statute correctly. It appears the MHW does not change from day to day, or from tide to tide, although the boundary of the wet/dry sand does. It looks like the twenty-foot rule is a convenience.

They still have not fixed this in Destin I have a court date on the 17th of August for the judge to determine if the landowner had tresspass authority within the 20 foot inshore of the wet sand zone. I am still under a restraining order becuse I was fishing in the wet sand.

OMG what a PIA !!!
Judges should fine these whacko greedy homeowners for frivilous lawsuits.
GREED FREAKS! Why did you even move to the beach where many folks are known to hang out, now all of a sudden it's your private island. Keyword in many of these posts is FRONT, beachFRONT property owners NOT BEACH owners, you GREEDY F627's . If you can't share, find another playground cuz a bunch fo sowallers are gonna stand up for our rights and 'KINGDOM LAW', just like in the little islands of HUH Y UH.
Just because you were blessed enough to buy beachFRONT property all of a sudden doesn't mean everyone else's worlds and laws should change to suit your GREEDY A$$E$. Count your blessings you spoiled brats, and then shut up and share. Hard-workin',tax-payin', baby-feedin', beach-lovin' peeps havin' to take off work to go to court cuz they were fishin', gimme a f627in' break. :bicycle: :breakcomp:
Mornin' everybody.
I just wanna say to any vacationers possibly reading this thread. Most beachFRONT homeowners are not as GREEDY as you are hearing on here. Don't be skeered.

What would stop a "private" beach owner from allowing them to let their dogs run on their beach?

Nothing, from everything I've read and understand as long as the dog stays on the private property.

What if he steps off the boundary line for a brief moment and is reported by a person enjoying the beach?

What would stop a "private" beach owner from allowing them to let their dogs run on their beach?