Customary use of the beach

[jack S]

Last week the Attorney Generals office told Surfrider representatives that they would respond to an inquiry, if asked by the county.

 

[BlueMtnBeachVagrant]

......It appears that the Sheriff is only listening to the Attorney General. Maybe this should be a question that all candidates for Sheriff are asked in the coming year?

A question like this, maybe?......
"Mr. future possible Sheriff, will you enforce all laws (as you will be sworn to do) or will you pick and choose based on your opinion, religious background, peer pressure or popular opinion such as the beach access issue?"

 

[BeachSiO2]

A question like this, maybe?......
"Mr. future possible Sheriff, will you enforce all laws (as you will be sworn to do) or will you pick and choose based on your opinion, religious background, peer pressure or popular opinion such as the beach access issue?"

As for your question, I believe it would be a fair question as I think any time we ask questions of candidates is a good idea. Keep in mind that this thread is not about tresspassing per se but is focussed on a distinct side of the tresspass issue and that is customary use. Also, enforcement requires an interpretation of the law so it would be good to see how the Walton County Sheriff comes up with his interpretation in order to facilitate policy within his department. It appears that the Okaloosa County Sheriff is interpreting it differently and I wonder why.

I also believe it would be good to follow-up with those running for County judge and ask them if they believe the beach access issue should be treated as a criminal or civil tresspass in regards to customary use. If it were a civil trespass, then wouldn't the homeowner have to prove whether or not customary use was valid or not? It would be an interesting burden of proof.

 

[Smiling JOe]

I also believe it would be good to follow-up with those running for County judge and ask them if they believe the beach access issue should be treated as a criminal or civil tresspass in regards to customary use. If it were a civil trespass, then wouldn't the homeowner have to prove whether or not customary use was valid or not? It would be an interesting burden of proof.

Good points. According to something I was reading, I think it was information from the Florida Bar, the lower elevation of the beach, even if privately deeded, is understood to be different than the uplands of the property, regarding property rights.

According to what I read from the Florida laws, a Civil Trespass is an offense against the owner of the property, where a Criminal Trespass is a crime against the Gov't (County or State in this case). If one is sitting peacefully on the beach, not intending to steal anything nor intending to enact bodily harm, I don't know how the trespass would be considered Criminal in nature, according to the law. Perhaps if one resisted arrest, that might be thought of as a crime against the gov't, but I can think of no other way. Can anyone else? (I repeat, I am not a lawyer and not pretending to be one. I am just a concerned citizen trying to understand my rights.)

 

[BeachSiO2]

Good points. According to something I was reading, I think it was information from the Florida Bar, the lower elevation of the beach, even if privately deeded, is understood to be different than the uplands of the property, regarding property rights.

According to what I read from the Florida laws, a Civil Trespass is an offense against the owner of the property, where a Criminal Trespass is a crime against the Gov't (County or State in this case). If one is sitting peacefully on the beach, not intending to steal anything nor intending to enact bodily harm, I don't know how the trespass would be considered Criminal in nature, according to the law. Perhaps if one resisted arrest, that might be thought of as a crime against the gov't, but I can think of no other way. Can anyone else? (I repeat, I am not a lawyer and not pretending to be one. I am just a concerned citizen trying to understand my rights.)

I don't know how it could be criminal either and maybe someone can correct me if I am wrong on my understanding of civil trespass. Like SJ, I AM NOT A LAWYER either and want to know what the current understanding is.

So, in Blue Mountain were they arrested for civil or criminal tresspass? And who has the burden of proof, the owner or the arrestee? This seems to be where an interpretation of customary use would come into play, and is why I think we should ask the interpreters their understanding at election time?

EDIT:

I went online and found this and am guessing that this is why it was criminal trespass, but would still like to know if this is why. It still brings up the question if anyone would have to demonstrate that customary use is not applicable in this case, or would the arrestee have to demonstrate it is. Once again the burden of proof question...

F.S. 810...
(b) If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person, or if the offender willfully opens any door, fence, or gate or does any act that exposes animals, crops, or other property to waste, destruction, or freedom; unlawfully dumps litter on property; or trespasses on property other than a structure or conveyance, the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

 

[Smiling JOe]

So, in Blue Mountain were they arrested for civil or criminal tresspass? And who has the burden of proof, the owner or the arrestee? This seems to be where an interpretation of customary use would come into play, and is why I think we should ask the interpreters their understanding at election time?

In my thought, to be arrested means to spend time in jail. The story I read mentioned the the arrestee was bailed out on $500 bond. If that is true, by my understanding of the law, he would have been charged with Criminal Trespass, since it is stated in the laws, that punishment for Civil Trespass cannot include jail time. The only punishment for Civil Trespass, as I understand it (not a lawyer), is by the owner filing suit for damages incurred. If there are no damages (I would think the burden of proof would be on the person filing suit -- the property owner), I don't understand how there could be any punishment what so ever.

 

[BeachSiO2]

I deleted my last post after finding some more information on Criminal Trespass and editing Post 15. I am still confused though on burden of proof for or against customary use.

 

[BlueMtnBeachVagrant]

....Also, enforcement requires an interpretation of the law so it would be good to see how the Walton County Sheriff comes up with his interpretation in order to facilitate policy within his department. It appears that the Okaloosa County Sheriff is interpreting it differently and I wonder why.

Funny how we have no attorneys here.

The reference I made a while back discusses what happened in Destin. That is, Destin wanted to make the ENTIRE beach public but backed off of that idea for fear of tremendous litigation. So they created the 20 foot "ordinance". But the problem is that this ordinance was not legally approved by the city council and thus not placed on the ordinance books. (If my interpretation is wrong here, someone please correct me.)

Well, the private property owners did not go after Destin because the "rules" were not legally adopted. So it appears there this "rule" is an agreeable stalemate.

It seems to me, that legally speaking, a private property owner in Destin could still ask anyone to leave if they are anywhere on the dry sand (again I'm open for opinions here), as there is no legal basis for Destin to have declared this ordinance. They would, according to the attorney general, be required to prove customary use on a case by case basis.

I won't speculate into the politics in the Destin area, but I'll bet Walton County is tame in comparison. It appears the sheriff in Walton County is independent (as he should be). I have no idea about the position of Okaloosa's sheriff.

Regardless, both sheriffs must uphold the law as it stands. An intentional misinterpretation to appease popular opinion really is a bad idea.

 

[Smiling JOe]

I deleted my last post after finding some more information on Criminal Trespass and editing Post 15. I am still confused though on burden of proof for or against customary use.

I've read that rule before, but, in my non-legal opinion, the customary use doctrine should over-ride that.

Also, if that is rule is the rule, please give me an example of Civil Trespass. Anyone? Are they two separate things, Civil and Criminal Trespass, or is Civil Trespass just in addition to any Criminal Trespass, and the way in which a property owner can legally suit for damages?

Why the rules of the land have to be made so difficult for a common person to understand is well beyond my comprehension. I guess I need to be a lawyer to know that answer.

 

[GRAHAM GINSBERG]

Just so yal know, Mr. Vagrant spewed some venom on the 'led away' thread

It should be copied and pasted on every beach access board on how property owners react to beach access advocates when challenged.

It's not pretty, viewer discression is advised

ROALMNAO