That e-mail was responding to me about being told by the Okaloosa county sherifs office to leave the wet sand of the beach while fishing on 21-April of this year near Destiny Shores.
Led away in Handcuffs
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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.
Krafty, to me, it reads that the intent of the Exception to the law, was "To ensure that the military can secure their property for defense purposes," and Courts will take intent of laws very seriously. In the case of the military's lease to a private entity, the private entity is not the military nor is it defending a military base. I think that is a no-brainer.
I agree.
Protecting shoreline access is no small matter in the Islands. It's enshrined in Hawai'i statute but originated in kingdom law.
I also really like the pride that Hawaiians seem to have in insuring
"public ownership" of the shoreline, as they put it.
False imprisonment:
Intentionally restraining another person without having the legal right to do so. It's not necessary that physical force be used; threats or a show of apparent authority are sufficient. False imprisonment is a misdemeanor and a tort (a civil wrong). If the perpetrator confines the victim for a substantial period of time (or moves him a significant distance) in order to commit a felony, the false imprisonment may become a kidnapping. People who are arrested and get the charges dropped, or are later acquitted, often think that they can sue the arresting officer for false imprisonment (also known as false arrest). These lawsuits rarely succeed: As long as the officer had probable cause to arrest the person, the officer will not be liable for a false arrest, even if it turns out later that the information the officer relied upon was incorrect.
My words here: Probable cause is the tricky one. Try proving that they didn't have that! They can always find probable cause.
Intentionally restraining another person without having the legal right to do so. It's not necessary that physical force be used; threats or a show of apparent authority are sufficient. False imprisonment is a misdemeanor and a tort (a civil wrong). If the perpetrator confines the victim for a substantial period of time (or moves him a significant distance) in order to commit a felony, the false imprisonment may become a kidnapping. People who are arrested and get the charges dropped, or are later acquitted, often think that they can sue the arresting officer for false imprisonment (also known as false arrest). These lawsuits rarely succeed: As long as the officer had probable cause to arrest the person, the officer will not be liable for a false arrest, even if it turns out later that the information the officer relied upon was incorrect.
My words here: Probable cause is the tricky one. Try proving that they didn't have that! They can always find probable cause.
Back to the Inn at Blue Mountain Beach. Circuit Court Case# 93-1133-CA, Claude D. and Elizabeth C. Jones, Plaintiffs, VS. Walton County. This case involved a long-running dispute between Jones and the developers of the Inn. Maybe some old timers remember that originally this was going to be a highrise, as the developers claimed grandfathering exempting them from the height limitation. That was one of the issues that landed them in court. An order approving a settlement agreement was filed on 3/12/98. The agreement is between the Joneses, Walton County, and Blue Mountain Beach Associates L.C. Of interest to this thread:
"Public parking for beach access - 5 spaces.
Public beach access shall be maintained with designated parking spaces, as shown on the site plan, and walking/biking access is to be provided as shown on the site plan attached hereto as Exhibit D. (Sorry I do not have the site plan, should be available from the clerk of court,)
This agreement is binding on all the parties hereto, their assigns, successors, predecessors, heirs and agents. "
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.
"Public parking for beach access - 5 spaces.
Public beach access shall be maintained with designated parking spaces, as shown on the site plan, and walking/biking access is to be provided as shown on the site plan attached hereto as Exhibit D. (Sorry I do not have the site plan, should be available from the clerk of court,)
This agreement is binding on all the parties hereto, their assigns, successors, predecessors, heirs and agents. "
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.
I was thinking more along the lines of the person reporting the tresspassing, rather than the Sheriff's Office.
Maybe it could be considered "harrassment" by the property owner(s).
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 public’s 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
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 water’s edge to avoid blocking the public’s 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
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 public’s customary use of the each. Specifically, the City sought historical and archaeological information toestablish 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 Sheriff’s Office.72 The Sheriff’s 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 Sheriff’s 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]
[/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 Sheriff’s 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 city’s beach management ordinance
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
.… 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 public’s 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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